Plaintiffs often argue in seeking class certification that an employer’s policy applicable to all or a certain group of employees provides sufficient evidence of commonality to justify the certification of the alleged class. In Delodder v. Aerotek, Inc., the Ninth Circuit affirmed the district court’s decision denying certification of a class of recruiters who claimed they had been misclassified as exempt from California’s overtime requirements. In reaching its decision, the Court of Appeals agreed with the lower court that evidence of material differences in the activities that the alleged class members actually performed carried greater weight than the defendant’s uniform corporate policies and training programs.
Plaintiffs in Delodder sought certification under Rule 23(b)(3) based on the theory that Aerotek had a common policy requiring all recruiters to complete the same training and follow the same policies when performing their jobs. Plaintiffs relied on Fair Labor Standards Act regulations incorporated by reference into the California Wage Orders. The regulations establish that routine screening of job applicants according to predetermined criteria does not require “discretion and independent judgment,” but that the selection of qualified candidates does.
Rejecting this argument, the district court found that some Aerotek recruiters had more authority to select and recommend candidates than others and thus, were not simply operating pursuant to any predetermined criteria. The Ninth Circuit agreed stating that evidence of corporate policies and training programs is not dispositive of the class certification issue, “for the obvious reason that training and policies may not reflect what the class members actually do.” The Court upheld the district court’s finding that class certification was inappropriate because the question of whether a putative class member lacks the requisite discretion depends on predominantly individualized issues.
The Ninth Circuit similarly rejected Plaintiffs’ effort at certification under Rule 23(c)(4) which permits a class to be maintained with respect to a particular issue. Plaintiffs had sought certification of a limited class action to adjudicate their claim that class members do not perform “office or non-manual work directly related to management policies or general business operations.” The Court upheld the district court finding that all putative class members were engaged in “meeting the needs of Aerotek’s customer companies,” a role that is directly related to Aerotek’s general business operations, and therefore qualified under the administrative exemption.
The Ninth Circuit’s decision was widely anticipated after the Court agreed to hear this discretionary appeal and has been the subject of prior posts on our Seyfarth Shaw’s Workplace Class Action Blog. Class action litigators were hoping for some guidance from the Ninth Circuit for close call cases requiring a fact-intensive inquiry.
At least to some degree, the decision delivered. The Ninth Circuit confirmed that a trial court must “make a factual determination as to whether class members are actually performing similar duties” in exemption cases, and refuted the argument that a district court’s decision to afford more weight to evidence of actual work performed (rather than to the uniform policy evidence) was a clear error of judgment. This ruling provides employers with helpful guidance on the type and quality of evidence needed to defeat class certification in exemption cases.