State of Class Certification: Defense in Wage and Hour Cases

Over the last decade, courts have grappled with how to apply the U.S. Supreme Court’s class action jurisprudence, including such landmark cases as Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v. Behrend, in the wage and hour context. The evolving case law has, in turn, shaped how plaintiffs counsel select and pursue claims in order to maximize the likelihood of obtaining a certified class or collective action.

A recent report from Seyfarth Shaw LLP suggests that wage and hour certification decisions in 2019 showed a slight uptick in the percentage of cases resulting in conditional certification, but also an increase in successful employer efforts to decertify classes.

While these new figures do not demonstrate a particularly large change in the wage and hour certification landscape, they do reflect a measure of success on the part of the plaintiffs bar in pursuing a less-is-more strategy focusing on smaller, more cohesive groupings of workers.

Employers have developed a variety of approaches for opposing certification in these cases. Class claims often falter when employers can show that the plaintiffs have failed to identify a common policy or practice that violates the Fair Labor Standards Act or state law.

Where plaintiffs sufficiently allege a nexus linking the putative class, employers often introduce evidence demonstrating that practices vary by location, supervisor or even employee, thereby showing that adjudicating the claims will require highly individualized inquiries, rendering a class proceeding unmanageable. Even if a court initially grants certification, these considerations can set the stage for decertification, which historically favors employers, particularly in FLSA cases.

Beyond the usual arguments addressed to the elements of conditional or class certification, there are several additional strategic considerations worth examining when defending (or planning for the defense of) wage and hour class litigation. This article discusses a number of recent developments that employers defending wage and hour class cases should understand.