In June 2005, two trial Courts denied class certification on the grounds that common issues did not predominate. In Dunbar v. Albertson’s, plaintiff alleged misclassification of Albertson’s Grocery Managers as exempt employees. While the Court determined that the plaintiff satisfied the acertainability, numerosity, typicality and adequacy requirements of a class action, the Court determined that the plaintiff did not satisfy the commonality or superiority requirements.
The Court found that common job duties or the existence of uniform practices did not fully determine whether commonality exists. The Court noted that the determination of exempt status would instead depend on the relative amounts of time spent by class members on the various duties in the position each work week. Relying on a variety of evidence, the Court concluded that no broad generalizations could be made across the class regarding how much time class members spent on various tasks or how class members spent their time work week to work week. Therefore, because the Court would have to focus on the actual work experiences of each class member to determine exempt status, it concluded that commonality did not exist.
The Court also concluded that superiority did not exist because of the high potential value of each class member’s claims. The Court noted that each class member earned between $50,000 and $65,000 per year, and so each individual overtime claim would be worth over $30,000. Consequently, there would be plenty of motivation for each class member to pursue an individual claim for overtime wages.
In Colburn v. Albertson’s, the superior Court denied class certification in an off-the-clock work case emphasizing the fact that the need for individual proof of liability made class certification treatment inappropriate.
The plaintiffs, Albertson’s “front end” workers (e.g. cashiers, customer service workers), alleged that they worked off-the-clock hours for which they were not compensated. The Court noted the following in concluding that there was no common plan or policy to require or accept off- the-clock work on the part of the employer:
- front end” workers were not under uniform pressure to work off-the-clock
- a variety of reasons existed why a front end worker might work off-the-clock
- “front end” employees are not scheduled based on task assignments and there are no bonuses based on meeting labor or production goals
In the absence of a common plan or policy on the part of the employer which affected all the class members in the same way, the Court concluded that whether each member of the class worked off-the-clock was essentially an individual inquiry. First, the circumstances of the off-the-clock work and the employer’s knowledge of it would require individual proof. Second, Albertsons would be entitled to assert individualized defenses to the class members’ claims such as:
- no off-the-clock work was actually performed
- any instructions to work off-the-clock were outside the manager’s authority
- employer chose to violate employer’s express policy
- employee has a unique animus toward the employer, etc.
On these grounds, the Court concluded that class certification was not warranted because individual issues would predominate.
Dunbar and Colburn therefore represent favorable and significant post-Sav-On decisions that are helpful in opposing class certification motions and hopefully representative of how other trial Courts will proceed to make class certification decisions in the wake of Sav-On.