The possibility of a wage and hour class/collective action is a risk that truly keeps in-house counsel up at night. These cases present unique issues that aren’t typically present in run-of-the-mill, single-plaintiff cases—much higher defense costs, exclusion of wage and hour cases from most insurance policies, large scale disruption across the company, and considerable potential liability. This anxiety will only increase given the upheaval to businesses caused by the COVID-19 pandemic. As we saw after the financial crisis in 2008, the amount of wage and hour litigation swells during periods of economic disruption. This will be exacerbated in the current environment, as the pandemic has changed the workplace overnight, and put many companies in unchartered wage and hour territory.
This article will discuss seven specific steps companies can take to successfully defend a wage and hour class/collective action. These steps often go overlooked if companies and their counsel dust off the same old playbook used for run-of-the-mill, single-plaintiff cases. Most importantly in a wage and hour class/collective action, in-house and outside counsel must, from the very beginning, work hand-in-hand to steer the ship in the direction that puts the company in the best position to defend itself and achieve its objectives.
