In a post last week, we predicted that the Supreme Court’s opinion in Comcast v. Behrend would have “monumental” implications for wage and hour class actions (read more here). Some of our readers, especially although not exclusively on the plaintiffs’ side interpreted the opinion much more narrowly.
Exactly five days after issuing Comcast, the Supreme Court made its intentions clear by applying the decision to a wage and hour class action.
Yesterday, the Supreme Court ordered the Seventh Circuit to rethink its decision in Ross v. RBS Citizens, N.A., in which the appeals court affirmed the certification of a wage and hour class action. Specifically, the Supreme Court granted review of the Ross case, vacated the lower court’s judgment, and remanded the case to the Court of Appeals “for further consideration in light of Comcast Corp. v. Behrend.”
Ross is a wage and hour class action in which two groups of bank employees were approved to pursue class claims for overtime pay allegedly due under the Illinois Minimum Wage Law. One group sought pay for several different kinds of off-the-clock work. The other claimed to have been misclassified as exempt from overtime.
The Bank argued that neither group could be certified as a class because neither group could satisfy the requirement that common issues predominate over individual issues, as explained in Wal-Mart v. Dukes. Each employee in the first group would have to prove what kind of off-the-clock work he or she performed, and the Bank would be entitled to prove that it did not know about the extra work or other employee-specific defenses. Similarly, each employee claiming to have been misclassified would have to prove his or her specific duties. Thus, the Bank argued, the case would inevitably be dominated by individual rather than class issues.
The district court and the Seventh Circuit both rejected that argument, ruling that whether the Bank had an unofficial policy of denying the plaintiffs earned compensation was enough of a common issue to justify class certification.
The Supreme Court’s handling of Ross is, at a minimum, an instruction to lower courts to review carefully and apply Comcast — and necessarily, Dukes — before certifying state law wage and hour claims as class actions. In fact, as we reported in our post last week, we think Comcast ultimately means much more — that state law wage and hour claims requiring individualized proof of damages are generally inappropriate for class treatment.
We will follow and report on the Seventh Circuit’s consideration of Comcast when it reconsiders its decision in Ross.