Dukes Desertification Changes California Overtime Litigation
After the decision for Wal-Mart v Dukes was announced, many believed that it would significantly change class action litigation, specifically what was needed to certify a class action. The case also alleged Sexual Discrimination, and much of the language seemed to apply to other kinds of class actions, such as those outside of the employment context entirely.
Particularly, will Dukes apply to collective actions underFLSA section 16(b)? 16(b) is what allows wage and hour claims to be filed collectively if the class members are “similarly situated”. In the past, most courts find this to mean that the class members must be able to show that they were subject to “a common policy or plan that violated the law.” The best example of this was written by district court judge Sonia Sotomayor , Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y.1967). However, the Dukes Decision was related specifically to Rule 23(a)(2), which necessitates a commonality. In other words: Are the facts of the case common to the class?
In California Cruz v Dollar Tree, Case No. 3:07-04012-SC (N.D. Cal. July 8, 2011), demonstrates that Dukes will apply to wage and hour suits as well. Cruz represented all current and former store managers of the Dollar Tree Stores in California. Cruz filed in northern California courts alleging that they were misclassified as exempt from overtime but were in fact entitled to overtime pay as well as meal and rest breaks. The court certified the class in 2009.
In both of these cases the plaintiff won the first round, but this did not last. After the cases were certified, the Ninth Circuit render its decision in Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009), and Vinole v. Countrywide Home Loans, Inc.,571 F.3d 935 (9th Cir 2009), rendering the class partially decertified. Then later, The Ninth Circuit decertified a class of truck loading
After Cruz v Dollar Tree and Marlo v UPS were decertified, the court felt obligated to reexamine Dukes v Wal-Mart, stating, “a forceful affirmation of a class action plaintiff’s obligation to produce common proof of class-wide liability in order to justify class certification.” The court’s interpretation of this requirement was “common proof to serve as the ‘glue’ that would allow a class-wide determination of how class members spent their time on a weekly basis.” The end result, decertification of the class.dock supervisors it had previously certified in Marlo v UPS, Case No. 09-56196 (9th Cir. 2011).
The bottom line is that no matter what you think the current labor law says about your employment rights, the laws are always changing. It can never hurt to reach out to an experienced California labor law attorney to evaluate your current situation.