Michael Kun Quoted in Article “9th Circ. Take on Dukes’ Scope Raises Bar for Wage Classes”Employment Law360 March 5, 2013
Michael Kun, a Member of the Firm in the Labor and Employment practice and national Co-Chairperson of the firm's Wage and Hour, Individual and Collective Actions practice group, in the Los Angeles office, was quoted in an article titled "9th Circ. Take on Dukes' Scope Raises Bar for Wage Classes." (Read full version — subscription required)
Following is an excerpt:
The Ninth Circuit on Monday partially reversed certification of a wage-and-hour class action under California law by workers for a Chinese-language newspaper and remanded the case for review in light of the U.S. Supreme Court's landmark Dukes ruling, a move attorneys say confirms the ruling's application to wage cases and will likely make it tougher for plaintiffs to win class certification.
Monday's ruling marks a reversal of fortune for San Francisco and Los Angeles employees of Chinese Daily News Inc., who claim they were required to work overtime without pay and were denied meal breaks and itemized pay stubs in violation of the Fair Labor Standards Act and California wage laws. ?...
The Chinese Daily News decision is going to be cited early and often by employers seeking to oppose class certification, according to Michael Kun. It will likely make it more difficult than ever to get wage-and-hour classes certified in California and other states under the Ninth Circuit's umbrella, he said.
"Most employers should be very sanguine right now, while plaintiffs and plaintiffs counsel should know that the road just got tougher for them," he said. ?...
That language could help boost employers' defense against class certification bids, because in wage-and-hour cases, it can be difficult for plaintiffs to establish that their claims can be resolved in one stroke, as opposed to many, according to Kun. ?...Monday's decision could make plaintiffs lawyers more inclined to file wage-and-hour actions under the FLSA instead of Rule 23, according to Kun. The FLSA has a more lenient standard, requiring plaintiffs to show only that they are similarly situated, he said.
"In California, at least, many wage-and-hour class actions are brought under Rule 23, but this decision might encourage plaintiffs attorneys to bring cases under the FLSA so they don't have to meet the higher Rule 23 standard," he said.