Litigating California Wage & Hour and Labor Code Class Actions

facility to the next, or variations in the independent judgment and discretion exercised by
employees subject to the “administrative” exemption,” have sometimes been relegated to
the “decertification” stage of a Section 216(b) case, after Dukes these or similar inquiries
may be critical very early, at the first, conditional certification stage.
Likewise, in cases raising the “executive” exemption, plaintiffs often contend that they were
improperly classified because they did not have the authority to make employment
decisions with respect to their subordinates, performed non-managerial tasks as their
primary duty, or otherwise. Courts’ resolution of certification issues based on these
assertions could be based less on anecdotal evidence about the named plaintiffs and more
on an analysis of whether there is a common thread tying those occurrences together on a
collective basis.
The Dukes Court also dispelled the notion that the merits of a case may not be considered
during the “rigorous analysis” required to determine if class certification is appropriate. This
could lead to challenges at the conditional certification stage about how much evidence is
enough to extrapolate to the group. In practice, this may mean that the critical merits
question of whether putative class members actually worked off-the-clock, actually failed to
take meal and rest periods, or otherwise were subjected to a violation of wage-and-hour
law, gets addressed far earlier in the litigation than has been the case until now.
Following Dukes, plaintiffs should now be pressed earlier in litigation to put forth actual
evidence, beyond mere allegations, that issues common to all class or collective action
members exist. From a due process perspective, this requirement could limit much of the
additional burden and expense of conducting broad discovery and litigating decertification
where there is no evidence issues common to all class or collective action members.
Indeed, this broad discovery is often so costly as to leave employers with little choice but to
settle the case, which explains, at least in part, why employers have seen an explosion of
wage-and-hour litigation in the last several years.
Show Me [You Are Owed] The Money
In the less controversial section of its decision, the Dukes Court held that Rule 23(b)(2)
applies only when “a single injunction or declaratory judgment would provide relief to each
member of the class,” not when individuals seek an individual award of monetary damages.
By its very nature, the recovery of money is central to wage and hour litigation. Plaintiffs
often argue that damages may be readily quantifiable based on a sample of the employer’s
pay records or that backpay calculations for a random group of class or collective members
can be utilized to extrapolate the damages on a classwide basis.
Although the setting was different, the Court’s rejection in Dukes of a “Trial By Formula”
approach to class litigation should undermine this formulaic approach to the viability of trials
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 85