Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 107 decision that expressly made the point that the California Supreme Court had implied in Sav-On: that a trial court’s decision to deny certification is entitled to the same deference as a decision to certify a class. In two post-Sav-On cases, Dunbar v. Albertson’s Inc.,657 and Keller v. Tuesday Morning, Inc.,658 the Court of Appeal held that the trial court did not abuse its discretion when it determined that differences in how specific managers allocated their time between exempt and non-exempt duties was a predominant issue in the case, and an issue that supported denial of class certification or decertification. More recently, the Court of Appeal in Mies v. Sephora U.S.A., Inc.659 confirmed that the manner in which exempt employees actually discharge their duties is a “central issue for trial” in a misclassification class action lawsuit. Although the plaintiffs argued that certification was appropriate based on “company-wide policies” applicable to the class members, the trial court had denied certification because of evidence showing that class members “handled their time very differently in performing a wide variety of tasks.”660 In Mies, the court held that the trial court “reasonably found such operational minutia [i.e., the company policies] offered little insight into class-wide liability” and that “the trial court weighed the foreseeable common and individual issues, and reasonably concluded the [] proper classification [of the putative class members] would likely hinge on individualized proof.”661 Similarly, the Court of Appeal in Kizer v. Tristar Risk Mgmt.662 held that “evidence of an employer's uniform policy to misclassify a group of employees as exempt from overtime requirements is not sufficient to support class certification because misclassification alone does not establish liability for overtime violations.” Rather, “before any court or jury may consider whether an employer's classification of a group of employees as exempt subjects the employer to liability on an overtime claim, the employees must show they worked overtime,” and the plaintiffs “failed to show they could establish through common proof that the potential class members—other than Plaintiffs—worked any overtime.”663 In the years that have passed since Sav-On, a body of federal district court cases (removed on diversity jurisdiction grounds) has emerged deciding class certification in a variety of different exemption contexts. It is notable how two cases with closely similar facts often result in one being certified while the other is not. Certification decisions sometimes appear to vary depending on the policy preferences of the particular judge assigned to the case. Several decisions by judges with a more pro-certification bent suggest that exemption cases should commonly be certified if all the employees were uniformly classified as exempt without the employer engaging in a person-by-person audit of the employees’ job duties (something that almost never occurs in real life).664 657 141 Cal. App. 4th 1422 (2006). 658 179 Cal. App. 4th 1389 (2009). 659 234 Cal. App. 4th 967, 983 (2015). 660 Id. 661 Id. 662 13 Cal. App. 5th 830, 842 (2017). 663 Id. at 843. 664 See, e.g., In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053 (N.D. Cal. 2007) (Judge Patel certified class of loan originators because employer had a common policy of treating all such employees as exempt without conducting an individual inquiry into their job duties), rev’d, 571 F.3d 953 (9th Cir. 2009); Alba v. Papa John’s
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