Did the Supreme Court’s decision last month in Comcast v. Behrend make it harder for plaintiffs to pursue wage and hour claims as class actions? An early consensus says “Yes.”
As we reported previously [read here], the Supreme Court itself, in Ross v. RBS Citizens, N.A., immediately applied Comcast to a wage and hour case, instructing the Seventh Circuit to reconsider whether off-the-clock work claims under Illinois law could be pursued as a class.
Since then, four federal district courts have considered the impact of Comcast on state law wage and hour class certification. One court denied class action status to two of the plaintiffs’ three claims. The other three courts refused to allow any class action at all. All four judges interpreted Comcast to mean that cases requiring significant individualized proof of damages — as most wage and hour cases do — should not proceed as class actions.
In Martins v. 3PD, Inc., issued the day after Comcast was announced, a federal judge in Massachusetts refused to allow the plaintiffs to pursue a claim for alleged unlawful pay deductions or “unjust enrichment” on behalf of a proposed class of more than 66 delivery drivers. Citing Comcast, the judge noted that calculating what was deducted from whom “would require complex individual inquiries not suited to class-wide litigation.” The only claim as to which the judge approved a class action was one that the judge found would not require individualized evidence.
In Roach v. T.L. Cannon Corp., the plaintiffs claimed that a restaurant chain operator had a policy of denying employees extra pay required by state law for work days spanning more than 10 hours and of deducting non-existent rest periods from employee time records. Relying on Comcast, a federal judge in the Northern District of New York refused to allow a class action, finding that damages could only be proven individually and that individual damages questions would inevitably overwhelm questions common to the class.
In Smith v. Family Video Movie Club, Inc., a federal district judge in Illinois refused to allow two former employees of a video rental store chain to pursue off the clock work and miscalculation of overtime claims as a class action. In finding that the plaintiffs failed to satisfy several of the requirements for pursuing damages on behalf of a class, the court noted that Comcast requires that “damages must be susceptible to measurement across the entire class, and individual damages calculations cannot overwhelm questions common to the class.”
Most recently, on April 17, 2013, in Ginsburg v. Comcast Cable Commun. Mgmt. LLC a district court judge in Seattle relied on Comcast in refusing to allow call center employees to pursue pre-shift work claims under Washington law as a class. The court concluded that each employee’s damages would inevitably depend on individualized evidence of his or her pre-shift activities. Accordingly, citing and quoting Comcast, the judge denied class certification on the grounds (among others) that individual damages issues would overwhelm issues common to the class.
We are not aware of any other wage and hour cases in which courts have interpreted Comcast or any cases that have found Comcast inapplicable to the predominance requirement of wage and hour state law class claims. Thus, an early consensus is forming that Comcast means what it says: courts must carefully analyze whether the need for individualized proof of damages makes many wage and hour cases unsuitable as class actions.
We will continue to report on the impact of this important Supreme Court decision on wage and hour cases.