Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 137 exempt and non-exempt duties was a predominant issue in the case, and an issue that supported denial of class certification or decertification. In Mies v. Sephora U.S.A., Inc.704 the Court of Appeal 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.”705 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.”706 Similarly, the Court of Appeal in Kizer v. Tristar Risk Mgmt.707 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.”708 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).709 704 234 Cal. App. 4th 967, 983 (2015). 705 Id. 706 Id. 707 13 Cal. App. 5th 830, 842 (2017). 708 Id. at 843. 709 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 USA, 2007 WL 953849 (C.D. Cal. Feb. 7, 2007) (Judge Feess certified class of restaurant managers on the ground of common job description and evidence that employer encouraged uniform practices among stores); Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2005) (Judge Marshall found that predominant common issue was defendant’s “policy of classifying all reporters and account executives as ‘exempt’”), reversed in part, vacated in part, 709 F.3d 829 (9th. Cir. 2013); Tierno v. Rite-Aid Corp., 2006 WL 2535056 (N.D. Cal. Aug. 31, 2006) (Judge Henderson granted certification based on common job description and casting doubt on credibility of surveys obtained by employer postlitigation).
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