Litigating California Wage & Hour and Labor Code Class Actions

In the immediate wake of Sav-On, there appeared to be a trend among trial courts to certify
more exemption misclassification cases. That trend was offset somewhat in 2006 by the
issuance of a published appellate decision that expressly made the point that Sav-On had
implied—i.e., that a trial court’s decision to deny certification is entitled to the same
deference as a decision to certify a class. In two post-Sav-On cases, Dunbar v. Albertson’s
Inc., 368 and Keller v. Tuesday Morning, Inc., 369 the court of appeals held that the trial court
did not abuse its discretion when it determined that differences in how specific managers
allocated their time between exempt and non-exempt duties was a predominant issue in
the case, and an issue that supported denial of class certification or decertification.
In the years that have passed since Sav-On, a body of federal district court cases (removed
on diversity jurisdiction grounds) has emerged deciding class certification in a variety of
different exemption contexts. It is notable how two cases with closely similar facts often
result in one being certified while the other is not. Certification decisions appear to vary
depending on the policy preferences of the particular judge assigned to the case. Several
cases have come down issued by judges with a more pro-certification bent that suggest
that exemption cases should commonly be certified if all the employees were uniformly
classified as exempt without the employer engaging in a person-by-person audit of the
employees’ job duties (something that almost never occurs in real life). 370 On the flip side,
numerous cases from judges more skeptical of class certification have denied class
certification notwithstanding a common job description and an absence of an employer’s
exemption audit of each person in the proposed class. 371
368
369
370
371
141 Cal. App. 4th 1422 (2006).
179 Cal. App. 4th 1389 (2009).
See, e.g., Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053 (N.D. Cal. 2007) (Judge Patel certified
class of loan originators because employer had a common policy of treating all such employees as exempt without
conducting an individual inquiry into their job duties), rev’d, 571 F.3d 953 (9th Cir. 2009); Alba v. Papa John’s USA,
2007 U.S. Dist. LEXIS 28079, 12 Wage & Hour Cas. 2d (BNA) 710 (C.D. Cal. Feb. 7, 2007) (Judge Feess certified
class of restaurant managers on the ground of common job description and evidence that employer encouraged
uniform practices among stores); Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2005) (Judge Marshall
found that predominant common issue was defendant’s “policy of classifying all reporters and account executives as
‘exempt’”); Tierno v. Rite-Aid Corp., 2006 U.S. Dist. LEXIS 66436 (N.D. Cal. 2006) (Judge Henderson granted
certification based on common job description and casting doubt on credibility of surveys obtained by employer postlitigation).
See, e.g., In re Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009) (overturning grant of
class certification for loan originators because a uniform exemption policy cannot be the sole basis for a class
certification, but is only one factor to be looked at); Vinole v. Countrywide Home Loans, Inc., 246 F.R.D. 637 (S.D. Cal.
2007) (Judge Sabraw denied certification of proposed class of loan originators on ground individualized issues
predominated as to whether any originator spent enough time outside to qualify for outside sales exemption), aff’d, 571
F.3d 935 (9th Cir. 2009); Jimenez v. Domino’s Pizza, 238 F.R.D. 241 (C.D. Cal. 2006) (Judge Selna denied class
certification of store manager class based on predominance of individualized issues as to how store managers divide
their time between exempt and non-exempt work); Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229 (C.D. Cal. 2006)
(Judge Fischer denied class certification of assistant manager class based on predominance of individualized issues as
to how employees divided time between exempt and non-exempt work); Campbell v. PricewaterhouseCoopers, 253
F.R.D. 586 (E.D. Cal. 2008) (certification denied as to categories of employees holding the same jobs as the class
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