18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 177 overtime compensation. Defendant argued that, assuming the definition was attempting to cover individuals who Plaintiff alleged were paid incorrectly, it would be overly broad as it would encompass all employees, including those who were exempt from the overtime provisions of the FLSA. The Court rejected this position. It reasoned that Defendant previously had provided a list of 188 employees in response to Plaintiff’s interrogatory request to identify each employee at issue in the case. Accordingly, the Court determined that Defendant already had identified the exact employees to be covered by the proposed collective action membership definition. The Court also held that Defendant had failed to offer any evidence or argument that these employees were not similarly- situated to Plaintiff or that they were paid using a different compensation scheme. The Court therefore concluded that Plaintiff met the lenient burden at the conditional certification stage to grant his motion. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Gessele, et al. v. Jack In The Box, Inc., 2021 U.S. Dist. LEXIS 229947 (D. Ore. Dec. 1, 2021). Plaintiffs brought a class action alleging that Defendant, Jack in the Box, Inc., deducted unauthorized amounts from Plaintiffs’ paychecks to pay for required non-slip shoes in violation of § 652.610 of the Oregon Revised Statute, and failed to pay all wages when due as required by § 652.120 of the Oregon Revised Statute. The Court previously had granted Plaintiffs’ motion for class certification of a class consisting of employees who purchased the required non-slip shoes and had Defendant take a payroll deduction from their paychecks in order to pay for the shoes. Following discovery, Defendant moved to decertify the class action, and the Court denied the motion. Defendant asserted Plaintiffs failed to establish either the commonality or typicality requirements of Rule 23(a). Specifically, Defendant contended in order to determine liability for shoe deductions, the Court would have to conduct an individualized inquiry for each employee as to whether: (i) the employee authorized shoe deductions using the shoe order form; (ii) the deductions were for the employee’s benefit; and (iii) the deductions took an employee below minimum wage or the required overtime rate. Id . at *9-10. Plaintiffs asserted there was not any change in law or fact to support revisiting the order of class certification. The Court noted that if after summary judgment or other developments in the case it was apparent that certification of the class may no longer be reasonable, the Court retained the flexibility to reevaluate its previous orders as may be necessary. Id . at *23. The Court also held that Defendants’ affirmative defenses of authorized deduction and valid deduction established there was a genuine dispute of material fact as to whether Plaintiffs and other employees signed forms authorizing Defendants to take shoe deductions. The Court determined that Plaintiffs failed to specify any particular subclasses that describe any specific post-verdict claim process that would cure the individualized inquiry issue. The Court, however, concluded that there was a possibility of dividing the class into two subclasses, including those who signed waivers for shoe deductions and those who did not. Accordingly, the Court ruled that the claims of some class members could proceed as a class and therefore it denied Defendants’ motion to decertify the class action. Haitayan, et al. v. 7-Eleven, Inc., 2021 U.S. Dist. LEXIS 38619 (C.D. Cal. Feb. 8, 2021). Plaintiffs, four franchisees of Defendant 7-Eleven Inc., filed a class action alleging that Defendant misclassified them as independent contractors and thereby violated various provisions of the California Labor Law. Plaintiffs moved for class certification. The Court previously had granted Defendant’s motion for judgment on the pleadings with prejudice, finding that it was not Plaintiffs’ employer, and denied the motion for class certification as moot. The California Supreme Court thereafter decided Dynamex Operations West, Inc. v. Superior Court , 4 Cal. 5th 903 (2018), which adopted a new test for distinguishing employees from independent contractors. As a result, the Court’s ruling was vacated on appeal and the judgment on the pleadings was remanded. Taking into consideration the Dynamex standard after the remand, the Court reevaluated Plaintiffs’ motion for class certification. It determined that Plaintiffs failed to meet the predominance requirement of Rule 23(b) and thereby again denied class certification. Defendant argued that even applying the Dynamex ABC test, class certification was inappropriate because common questions did not predominate and Plaintiffs failed to satisfy the adequacy of representation requirement. Defendant asserted that individualized issues predominated the misclassification inquiry because: (i) each of the three ABC test prongs required individualized inquiries; (ii) there were individualized questions regarding which franchisees were considered members of the putative class; (iii) the wage order exemptions were not subject to common proof; and (iv) Defendant’s affirmative defense involving franchisees’ releases also relied on individualized proof. Id . at *18. The Court noted that although franchisees’ salaries and employees were straightforward factual questions, primary engagement was more complex and fact intensive, and thus, would require individual inquiries. The Court ruled that each franchisee spent unique