Cal-Peculiarities: How California Employment Law is Different 2022 Edition

116 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com evidentiary issue and in treating the trial court’s purported evidentiary error as reversible without determining whether that evidentiary ruling had affected the certification decision . 322 5.14.2 Judicial endorsement of California wage and hour class actions The California Supreme Court, in its 2004 Sav-On Drug Stores case, issued a decision favoring class certification of a wage and hour case involving whether the employer had properly classified certain managers as exemp t. 323 Sav-On emphasizes that if one reasonably might conclude from the record that common issues predominate over individualized ones, then a trial court’s certification order should not be disturbed on appeal . 324 S av-On states that decisions regarding predominance are for the trial court to determine, and the trial court’s decisions should not be lightly overturne d. 325 While Sav-On does not mandate certification in exempt/nonexempt classification cases, the opinion has a pro- certification tone, stating that class actions are “encouraged” in the wage and hour context . 326 F urthermore, the Supreme Court suggested that if an employer categorically reclassified all the subject employees as nonexempt without changing their duties, that could fairly be taken as an admission that the position had been misclassified all alon g. 327 The Supreme Court also suggested that class treatment could be supported by the employer’s failure to audit the performance of its exempt employees to see if particular employees truly were functioning in an exempt capacit y. 328 Sav-On identified several issues plaintiffs could establish through common proof:  Whether the employer deliberately misclassified nonexempt employees as exempt.  Whether the employer implicitly conceded the employees in question were nonexempt when it reclassified them all from exempt to nonexempt.  Whether any given task within the limited universe of tasks that managers performed qualifies as exempt or nonexempt.  Whether a manager following the employer’s reasonable expectation for performing the job would spend most working time on exempt duties . 329 Sav-On concluded that a trial court could rationally conclude that those common issues predominated over individualized issues concerning how managers actually spent their time . 330 D ismissing concerns that these cases could prove unmanageable, Sav-On noted that the trial court had broad discretion as to how to handle individualized issues once the class issues were resolved . 331 S av-On gave minimal guidance as to how to carry out those proceedings, but it encouraged trial courts to be “procedurally innovative” in fashioning procedures to resolve remaining individualized issues efficientl y. 332 The California Supreme Court affirmed these general class certification principles in Brinker , a 2012 case, by holding that a trial court considering certification need not decide issues that affect an element of the certification standard, if they are unnecessary to the ultimate certification decisio n. 333 After Brinker , California courts have extended this pro-certification rationale even further, ruling that certification should turn on whether a plaintiff’s theory is susceptible to common proof, and minimizing the individualized inquiries necessary to determine which putative class members, if any, actually experienced a violation of the Labor Cod e. 334 Meanwhile, California appellate decisions going the other way (in the employer’s favor) either were not published or suffered the indignity of being depublished by the California Supreme Court . 335