142 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com Although Dukes was a discrimination case brought under Title VII, the Court’s discussion of the “commonality“ prong of Rule 23(a) serves as important authority in wage and hour cases.725 First, many wage claims are brought under state law, either in state court under Rule 23 analogues or in federal court via removal, supplemental jurisdiction, or diversity. In those cases, the Dukes discussion of commonality, and its tightening of the requirements to establish that prong of the Rule 23 test, is directly applicable. Second, Dukes can be used to argue that courts should narrow their application of the “similarly situated“ requirement in collective actions under FLSA § 216(b). Most courts faced with § 216(b) collective actions use a two-stage approach to certification. In the first stage, plaintiffs are required to show that the named plaintiffs and other potential party plaintiffs are “similarly situated.” Courts have struggled with the meaning of “similarly situated” for almost 65 years because the statute does not define the phrase, and the courts have not settled on a uniform definition. However, courts have consistently approached this question by examining whether common factors are present, such as the geographic scope and job duties of the potential party plaintiffs, as well as whether the individuals were subject to similar practices or policies. 2. The Similarly Situated And Commonality Standards Are Not So Different Traditionally, courts set a very low bar for plaintiffs to clear at this stage in order to obtain “conditional” class certification. However, inquiries under the “similarly situated“ standard are comparable to those that the Dukes Court said must be tightened under the “commonality” standard of Rule 23(a)(2). In fact, a number of courts have equated “similarly situated” to the commonality requirement of Rule 23(a)(2).726 Dukes thus encourages courts to pay closer attention to the disparities that often exist among members of a putative FLSA collective action—such as variations in supervisors, departments, facilities, divisions, and regions—because the Court held that the “dissimilarities” in the proposed class, not the common questions raised, have the most potential to determine whether classwide resolution of a matter is permissible. 725 See, e.g., Wang v. Chinese Daily News, 709 F.3d 829, 834 (9th Cir. 2013) (remanding wage and hour class action case in light of Dukes in order to determine whether claims of class of roughly 200 employees depended “upon a common contention … of such a nature that it is capable of classwide resolution”); Zackaria v. Wal-Mart Stores, Inc., 2015 WL 2412103 (C.D. Cal. May 18, 2015) (applying Dukes to deny certification of claims that asset protection coordinators were misclassified as exempt; although putative class members received similar training and were held to identical job expectations, an analysis of how employees actually spent their time is an individual question not amenable to resolution through collective proof). 726 See, e.g., Campbell v. City of Los Angeles, 903 F.3d 1090, 1114-15 (9th Cir. 2018) (“In considering the ‘similarly situated’ requirement in this case, [the parties] rely heavily on the Supreme Court’s assessment, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), of the commonality requirement of Rule 23. The analogy is not entirely misplaced. The ‘common question’ requirement within Rule 23 … bears a close resemblance to the ‘similarly situated’ requirement of section 216(b). … All these requirements serve comparable ends; their purpose is not simply to identify shared issues of law or fact of some kind, but to identify those shared issues that will collectively advance the prosecution of multiple claims in a joint proceeding.”); Perez-Olano v. Gonzalez, 248 F.R.D. 248, 257 (C.D. Cal. 2008) (“Commonality requires only that each class member be similarly situated in sharing common questions of law or fact.”) (citing Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir. 1964)); Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 483 (C.D. Cal. 2008), aff'd, 639 F.3d 942 (9th Cir. 2011).
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