Three Wage And Hour Predictions For 2022: Pay Incentive Class Actions, Cryptocurrency Pay, And Multistate Class Actions – Employment and HR

With the calendar having turned to 2022, it is time to look into
the crystal ball and make a few predictions for the year ahead
related to the wage and hour world.

Class and Collective Actions Concerning Hiring and Retention
Incentives Will Increase

In 2021, many employers across the country experienced starkly
increased competition for workforce talent. Whether it was
convincing existing employees not to participate in the “Great
Resignation” or persuading candidates with multiple job
options to join the home team, companies often relied on financial
bonuses to curry employment favor. The increased use of these
financial incentives may lead to increased class and collective
action lawsuits regarding these payments. Specifically, increased
wage and hour litigation activity may address whether such
enticements were nondiscretionary bonuses that needed to be
included in the overtime rate calculations for nonexempt employees.
Employers may want to consider auditing new types of payments they
made over the past year for compliance with wage and hour law
requirements.

More Employers Will Receive Requests for Compensation in
Cryptocurrency

In many ways, 2021 could be described as the year of
cryptocurrencies. Two of the most well-known cryptocurrencies
reached all-time high values. Multiple celebrities began endorsing
cryptocurrencies. Newly elected mayors in Miami and New York City
even promoted taking paychecks in cryptocurrency. All of these
headlines are sure to attract the attention of employees and lead
to questions about potential cryptocurrency compensation. Employers
that consider entertaining such inquiries may want to consider
whether and how any payments may be regulated by the Fair Labor
Standards Act (FLSA) or state laws. For example, several states
require wages to be paid in United States currency, which could
limit an employer’s ability to pay in cryptocurrency. Wage and
hour laws and regulations will be key to whether an employer can
provide what may be a highly sought employee incentive in 2022.

Fewer Multistate Collective Actions

Just over halfway through 2021, the Sixth Circuit Court of
Appeals issued a decision that significantly limited what began
as a multistate collective action lawsuit. The court held that a
federal court cannot exercise personal jurisdiction over a
corporate defendant with respect to the claims of nonresident
opt-in plaintiffs who join an FLSA collective action when the
claims are not connected to the defendant’s activities in the
forum state. A day later, the Eighth Circuit Court of Appeals
similarly excluded collective action claims with no connection to
the state in which the action was filed. Since then, multiple
district courts outside the Sixth and Eighth circuits have followed
the reasoning of these decisions. This trend may continue with
multistate employers citing these decisions to narrow the potential
list of putative plaintiffs in collective actions.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.