Litigating California Wage & Hour and Labor Code Class Actions

cases, the Dukes discussion of commonality, and its tightening of the requirements to
establish that prong of the Rule 23 test, will be directly applicable.
Second, Dukes should lead courts to narrow their application of the “similarly situated”
requirement in collective actions under FLSA section 216(b). Most courts faced with
§216(b) collective actions now use a two-stage approach to certification. In the first stage,
plaintiffs are required to show that the named plaintiffs and other potential party plaintiffs
are “similarly situated.” Courts have struggled with the meaning of “similarly situated” for
almost 65 years because the statute does not define the phrase, and the courts have not
settled on a uniform definition. However, courts have consistently approached this
question by examining whether common factors are present, such as the geographic scope
and job duties of the potential party plaintiffs, as well as whether the individuals were
subject to similar practices or policies.
The Similarly Situated And Commonality Standards Are Not So Different
Most courts have set a very low bar for plaintiffs to clear at this stage in order to obtain
“conditional” class certification. However, inquiries under the similarly situated standard are
comparable to those that the Dukes Court said must be tightened under the commonality
standard of Rule 23(a)(2). In fact, a number of courts have equated “similarly situated” to
the commonality requirement of Rule 23(a)(2). Dukes should thus compel lower courts to
pay closer attention to the disparities that often exist among members of a putative FLSA
collective – such as variations in supervisors, departments, facilities, divisions, and regions
– because the Court held that the “dissimilarities” in the proposed class, not the common
questions raised, have the most potential to determine whether classwide resolution of a
matter is permissible.
The final certification stage of a § 216(b) action requires a more stringent judicial analysis
than the first, and typically comes after discovery has been largely completed. At this
stage, courts assess whether the differences among the party plaintiffs (all of whom will
have opted in by this point following issuance of court-approved notice) outweigh their
similarities. If so, the action should be decertified. This “differences” inquiry runs hand-inhand
with the Supreme Court’s emphasis in Dukes on dissimilarities in the Rule 23 class
context.
The Dukes Effect Could Create An Early Evidentiary Hurdle For Plaintiffs
The effects of Dukes will likely be seen in all types of wage-and-hour litigation, whether the
alleged violation relates to minimum wages, overtime or other legal protections, and
whether the claim alleges exempt status misclassification, off-the-clock work, a violation of
technical pay practice requirements under state law, or independent contractor
misclassification. For example, while differences in the application of pay policies from one
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