Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 143 The final certification stage of a Section 216(b) action requires a more stringent judicial analysis than the first, and typically comes after discovery has been largely completed. At this stage, courts assess whether the differences among the party plaintiffs (all of whom will have opted in by this point following issuance of court-approved notice) outweigh their similarities. If so, the action should be decertified. This “differences” inquiry runs hand-in-hand with the Supreme Court’s emphasis in Dukes on dissimilarities in the Rule 23 class context. 3. Dukes Presents An Early Evidentiary Hurdle For Plaintiffs The effects of Dukes have rippled through all types of wage-and-hour litigation, whether the alleged violation relates to minimum wages, overtime, or other legal protections, and whether the claim alleges exempt status misclassification, off-the-clock work, a violation of technical pay practice requirements under state law, or independent contractor misclassification. For example, while differences in the application of pay policies from one facility to the next, or variations in the independent judgment and discretion exercised by employees subject to the “administrative” exemption,” have sometimes been relegated to the “decertification“ stage of a § 216(b) case, after Dukes such inquiries should be addressed very early, at the conditional certification stage. Likewise, in cases involving the “executive” exemption, plaintiffs often contend that they were improperly classified because they lacked the authority to make employment decisions with respect to their subordinates, or performed non-managerial tasks as their primary duty. Following Dukes, courts’ resolution of certification issues based on these assertions should be based less on anecdotal evidence about the named plaintiffs and more on an analysis of whether there is a common thread tying those occurrences together on a collective basis. Dukes also dispelled the notion that courts must disregard the merits of a case when applying the “rigorous analysis” required to determine if class certification is appropriate. This supports challenges at the conditional certification stage as to how much evidence is enough to extrapolate to the group. Accordingly, critical merits questions of whether putative class members actually worked off the clock, actually failed to take meal and rest periods, or otherwise were subjected to a violation of wage and hour law, should be addressed far earlier in the litigation than was previously the case.727 Following Dukes, plaintiffs may now be pressed earlier in litigation to put forth actual evidence, beyond mere allegations, demonstrating that issues common to all class or collective action members exist. From a due process perspective, this requirement can limit much of the additional burden and expense of conducting broad discovery and litigating decertification where there is no evidence of issues common to all class or collective action members. Indeed, this broad discovery is often so costly that it encourages employers to settle cases without regard to merit. 727 See, e.g., Gonzalez v. Millard Mall Servs., Inc., 281 F.R.D. 455 (S.D. Cal. 2012) (denying class certification as to claims regarding meal and rest breaks, split-shift pay, and failure to timely pay wages upon termination, because plaintiffs failed to establish the commonality prerequisite under Dukes; however, the court reasoned that class certification was not necessary for PAGA claim, because PAGA relief is mainly “for the benefit of the general public rather than the party bringing the action” and PAGA “provides no specific class certification requirements”).
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