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Are Employees Are Better Off in State Court?

An article published in the Winter 2009 edition of the Harvard Law & Policy Review concludes that employees in employment discrimination lawsuits tend to do much better in state court than federal court. In “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?”, professors Kevin M. Clermont & Stewart J. Schwab report that plaintiffs in non-employment lawsuits win half of the time, but win just 15 percent of the time in employment discrimination cases in federal courts. On appeal, the circuit courts reverse 41% of the district courts' pro-employee decisions, and only reverse 8.7% of the district courts' pro-employer decisions. The article doesn't specifically address wage and hour case results. It does not the increase in wage cases, however, which contrast with a marked decline in the volume of other employment cases from 1999 to 2007.

Instead, there have been reports of a recent spike in employment class actions, as well as reports of increases in other kinds of employment litigation. E.g., Julie Kay, Employers Start to Push Waivers, Nat’l L.J., June 9, 2008, at 8 (“overtime lawsuits have become the most common form of employment lawsuit”); Sheri Qualters, Firms Beef Up Employment Practices, Nat’l L.J., Mar. 17, 2008, at 10 (“Employment cases are increasingly likely to be labor-intensive class actions, instead of individual employees bringing grievances to court . . . .”); Fourth Annual Workplace Class Action Litigation Report from Seyfarth Shaw Notes Significant Growth in High Stakes Litigation at State Court Levels: Volume of Wage and Hour Litigation Continues to Increase Exponentially; Employment Discrimination Class Actions Theories and Remedies Continue to Evolve and Expand; and the Size of ERISA Class Action Settlements Outpace all Other Types of Class Action Resolutions, pdf (Jan. 14, 2008). Although class actions constitute only about a third of one percent of the number of cases in code #442, see Nielsen & Nelson, supra note 6, at 692, an increase in class actions could account for part of the drop in individual actions, unless the class actions mainly mobilized new sorts of plaintiffs. Additionally, the AO does not categorize wage-and-hour or equal-pay suits as discrimination suits under code #442, but rather under code #710.

Another interesting, if not light, read.


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