Co-authored by Coby M. Turner and Adam J. Vergne

In the Central District of California—often known as a magical kingdom for plaintiffs in wage-hour lawsuits—Judge Fernando Olguin brought everyone back to reality by denying class certification. Plaintiff Aladdin Zackaria alleged Wal-Mart incorrectly classified its Asset Protection Coordinators (“APC”) as exempt and moved to certify a class of all APCs that worked in California. After a close inspection of the evidence presented by Wal-Mart, however, Judge Olguin found the disparate experiences of APCs at different Wal-Mart stores prevented the case from being resolved by “common proof on a class-wide basis.”

Despite finding that APCs operated under uniform corporate guidelines, had identical training, and had the same pro forma job responsibilities, the court noted the “touchstone” of analysis under the executive and administrative exemptions is the way in which employees actually spend their time at work. Based on detailed statements in declarations from putative class members gathered by Wal-Mart, Judge Olguin concluded the day-to-day activities and level of discretion exercised by employees varied greatly from one APC to the next. With such individualized experiences, the court held there was no showing of common proof to support trying the case as a class action. Although it may be too early to say it’s a whole new world for employers in California facing misclassification class actions, employers presenting evidence employees’ experiences are varied can position themselves to defeat class certification.

Beyond California, the standard applied to motions for class certification continues to vary somewhat from jurisdiction to jurisdiction and even judge to judge. But as courts gain experience in wage-hour matters, the granting of class certification is not a forgone conclusion as some had treated it. Even when applying the two-step certification analysis for collective actions under the FLSA, courts have shown a willingness to consider testimony in the form of declarations from putative class members in order to defeat evidence in the form of self-serving declarations submitted by named plaintiffs. Employers should take note. By spending the time to gather evidence early, a substantive opposition to class certification can be made—as opposed to mere hypothetical arguments. Although the costs of mounting such an opposition can be substantial, the value of defeating class certification makes such a challenge worthwhile … even in California.