Litigating California Wage & Hour and Labor Code Class Actions

A 5 to 4 ruling reversed the Ninth Circuit and held that class action certification should not
have been granted as to the element of commonality. Dukes is significant to employers
because it holds plaintiffs in class litigation to a strict burden under Rule 23(a) of
establishing commonality among all putative class members as to the reason for a
particular employment decision--the “glue” that holds the alleged unlawful conduct together.
The Court ruled that proof of commonality will frequently overlap with the merits of the
case. This is contrary to plaintiffs’ usual position that it is inappropriate to consider the
merits of claims at the certification stage of class litigation. In addition to commonality, the
Court severely limited the use of Rule 23(b)(2), pertaining to class-wide injunctive and
declaratory relief, in cases seeking back pay, ruling that such money damages may be
awarded under this rule only when they are truly incidental to the requested equitable
relief. 383
Dukes contains two core holdings. First, the Court held unanimously that certification of the
class of female Wal-Mart workers was inappropriate under Federal Rule of Civil Procedure
23(b)(2), which permits certification in part where “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.” Second,
the Court, ruled 5-4 that the plaintiffs failed to satisfy the “commonality” requirement of Rule
23(a)(2). Each of these holdings will reverberate in important ways in wage and hour
litigation.
Class Members’ “Dissimilarities” May Now Be What Bind Them
Dukes reiterates that, because class actions are “an exception to the usual rule,” a class
representative “must ‘possess the same interest and suffer the same injury’ as the class
members.” One gauge for measuring whether that requirement has been met is the
“commonality” test of Rule 23(a). According to Justice Scalia’s majority opinion,
commonality requires class members to have suffered the same injury as each other, not
just a violation of the same provision of law. Moreover, the common injury must be
“capable of classwide resolution – which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Although Dukes was a discrimination case brought under Title VII, the Court’s discussion of
the “commonality” prong of Rule 23(a) should serve as important authority in wage and
hour cases.
First, many wage claims are brought under state law, either in state court under Rule 23
analogues or in federal court via removal, supplemental jurisdiction, or diversity. In those
383
See Sepulveda v. Wal-Mart Stores, 2011 WL 6882918 (9th Cir. 2011) (affirming that the non-incidental test should be
applied when determining class certification under Rule 23(b)(2)).
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 83