2022: A year like none other for class actions.

Duane Morris LLP released its Class Action Review 2023 examining all categories of class-action litigation, and one thing is clear for employers in 2023: Be prepared.

"With a certification conversion success rate of nearly 77%... companies need to redouble their compliance and risk mitigation efforts to address class action litigation risks and take the necessary planning, preparation and decision-making steps to position themselves to withstand and defend class action exposures," says Duane Morris partner Gerald L. Maatman Jr., co-author of the review and chair of the firm's workplace class-action division.

The report identified 10 key trends for 2022, which also hint to employers what to watch out for this year. Below we look at those most closely related to employment law.

The arbitration defense suffered setbacks in 2022

Arbitration agreements with a class-or collective-action waiver took the biggest hit. Defendants only managed to compel arbitration in 68% of cases.

On the legislative front, Congress significantly limited the availability of arbitration for cases alleging sexual harassment or sexual assault when it passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. President Biden signed the act into law on March 3, 2022.

Companies seeking to enforce arbitration agreements in 2023 should expect pushback. "In particular, we expect to see litigation over whether the Act's use of the word 'case' renders the statute applicable to all claims in the case, including claims other than sexual harassment and sexual assault and whether the statute, therefore, will allow for a broader shield to the arbitration defense," says the report.

Judges certified class-action claims in more FLSA cases than others

Employers facing FLSA wage-and-hour claims were hit hard by the class-action bar as there were more rulings issued in FLSA collective actions than in other areas. Across all major types of class actions, courts issued rulings on 360 motions to grant or deny class certification in 2022. Of these, plaintiffs succeeded in obtaining or maintaining certification in 268 rulings, an overall success rate of nearly 75%.

Expect new rules on independent contractors

Over the past two years, the U.S. Department of Labor has continued to roll out worker-friendly rules that could have a cascading impact on workplace class actions. Such efforts continued on multiple fronts in 2022, including with respect to rules regarding...