Analytics Show Labor and Employment Litigation has Held Steady Throughout Pandemic

The COVID-19 pandemic was accompanied by a generational shift in the workforce, including a shift to telework, economic uncertainty, and a rise in the number of union members across the country. Docket Alarm data shows that labor and employment litigation in federal court has remained steady throughout all the turmoil.

The below analyses cover all litigation from January 1, 2019 through March 31, 2023 for federal cases with Nature of Suit (NOS) codes related to labor and employment. Civil Rights – Jobs cases often dealing with wrongful termination and employment discrimination, while Civil Rights – Americans with Disabilities Act deal with similar matters concerning disabilities, both inside and outside of the workplace. Fair Labor Standards Act (FLSA) cases concern wage and hour lawsuits. The Labor Management Relations Act is a statute relating to union disputes, and the Railway Labor Act deals with similar disputes in rail and air transport.

Looking at the numbers broadly, we see that new cases peak at the end of each calendar year, followed by a relatively slow January and February.

However, when we break the cases down by NOS code, Civil Rights and perhaps ADA cases seem to be the driver of this trend. In fact, these are the only two codes with case numbers that significantly correlate. 

Breaking cases by district, the large plurality are filed in the Southern District of New York, followed by the Central District of California, and the Eastern District of New York. The Southern District of Florida, the Eastern District of Pennsylvania, the Middle District of Florida, and the Northern District of Illinois round out the top seven.

Breaking down these districts by NOS shows significant variance. And, under the assumption that these seven districts represent the country as a whole, some districts tend to see more FLSA litigation and some see more Civil Rights cases.

Moving onto who represents the parties in labor litigation, the most active firms for plaintiffs and defendants should be considered separately.

The most active defense firms deal with many more cases per month than plaintiff’s firms. The top eight firms representing defendants open on average 43 cases per month, while the five most active firms representing plaintiffs file on average 16. These defending firms also have more variance in cases per month than plaintiff firms, though this could simply be an artifact of the greater total cases.

Also, while defending firms see relatively similar distributions concerning the types of suits they deal with, plaintiff firms tend to specialize in FLSA or Civil Rights. These differences are statistically significant, so assuming these most active firms are representative of the field as a whole, said differences would generalize.

Looking within the top firms, among those representing defendants, the top three, Littler Mendelson; Jackson Lewis; and Ogletree, Deakins, Nash, Smoak & Stewart, tend to track together with the remaining five forming their own block. All five top plaintiff firms tend to follow each other, excepting the massive spike Morgan and Morgan saw in February 2022.

As to the question of whether the increase in unionization among workers has seen an increase in labor litigation, the answer thus far is no. There is no appreciable change in individuals suing over labor issues in the four year period covered by this analysis, at least none outside of the aforementioned yearly cycle. This could be for any number of reasons, but time will tell whether this trend changes.