Authored by Laura Reathaford
A California federal district court judge has refused to certify a putative class of Verizon FiOS technicians who claimed they were misclassified as exempt from California’s overtime requirements.
Plaintiffs sought certification under Rule 23(b)(3) on the basis that Verizon had a common policy of misclassifying its First Level Managers (“FLMs”). However, the Court rejected this frequently alleged “common policy” argument finding that the ultimate question of whether Verizon unlawfully classified FLMs as exempt “is an individualized inquiry involving facts unique to each Plaintiff.” The Court noted that in order to win certification, it is not enough merely to allege a common scheme. A plaintiff must establish the reasons why each FLM was treated in an allegedly unlawful manner.
In this regard, the Court relied heavily on the U.S. Supreme Court’s decision in Dukes v. Wal-Mart, noting that ‘[w]ithout some glue holding the alleged reasons for those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” The evidence before the Court revealed that FLMs had different job duties and carried out these duties in a variety of ways based on the location and size of each FLM’s respective worksite, the number of employees assigned to each worksite and its business volume as well as the experience level of the employees and the type of work actually performed.
Is the Verizon decision indicative of a new trend in post-Dukes class and, by extension collective, action litigation? Class actions alleging state wage and hour violations have, in the past, frequently been certified. However, as Dukes points out, “the class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties” and in fact, more and more district courts are applying Dukes to deny certification in misclassification cases. Whether this means that fewer misclassification and other types of wage and hour claims will be certified in the future remains to be seen. At least for now, Verizon might say that in 2012, the rule in Dukes rings true.