Litigating California Wage & Hour and Labor Code Class Actions

does not allow for opt-in class actions. 378
The court also criticized the opt-in procedure as a
device that improperly is used by the defendant to “chip away at the size of the class.” 379
addition, the court attempted to construe its decision as beneficial to class defendants
because an opt-out class binds more potential plaintiffs in those cases where the employer
prevails on the merits. 380
Whatever the merits of this reasoning, the fact remains that trial
courts throughout California are now barred from certifying cases as opt-in class actions.
In 2007, however, another court of appeal narrowed Hypertouch. In Estrada v. FedEx
Ground Package System, Inc., 381 the trial court certified an independent contractor
misclassification class but only of certain drivers of certain trucks on certain routes. The
only way to determine who qualified as a class member under the particular class definition
the court adopted was to ask the class members, because no records existed that would
reveal class membership. Accordingly, the trial court authorized the sending of a
questionnaire for drivers to answer under oath to determine whether they qualified as class
members. Those who failed to respond were ultimately deemed not to be class members
and were dismissed from the case without prejudice.
The plaintiffs argued that this was tantamount to having certified a class on an opt-in basis,
in violation of Hypertouch. The court of appeal rejected the comparison, noting that the
questionnaire mechanism was not used to opt in to the class action, but merely to identify
drivers as class members. 382
In essence, the questionnaire was used to ascertain class
membership, not to determine whether someone, once identified as a class member,
wished to participate in the class action. In cases where a trial court certified a class that
requires gathering information from putative class members to determine class
membership, Estrada may provide a hook for the defendant to argue that the potential
class must be surveyed to determine who are class members, with all non-respondents to
the survey being dismissed from the case.
E. Wal-Mart Stores, Inc. v. Dukes - The Supreme Court Shifts The
Landscape Of Class Certification
In June 2011, the U.S. Supreme Court issued its long-awaited decision in Wal-Mart Stores,
Inc. -- U.S. --, 131 S.Ct. 2541 (2011). This opinion transformed Rule 23 law and
dramatically changed how workplace class actions are structured and defended and, in
doing so, will also assist employers in defeating certification in wage and hour cases.
In
378
379
380
381
382
Id. at 1542-43.
Id. at 1542.
Id.
154 Cal. App. 4th 1 (2007).
Id. at 26 (“discovery was necessary to determine whether in fact there was an ascertainable class”).
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