The Best Class Action Scenario Post Duran

The best way to bring a class action is a) keep it California by defining the class as California residents and b) identify a company wide illegal labor practice embodied in a written company policy.  This is the approach of choice in the aftermath of California and U.S. Supreme Court cases raising the barrier for Plaintiffs’ attorneys to prove that the proposed class has been uniformly and identically injured by the labor code violation.  Duran v. U.S. Bank National Association (2014) 59 Cal.4th 1172 Duran Decision and Wal-Mart Stores Inc. v. Dukes (2011) 564 U.S. Dukes Decision.  See also a complete listing of the briefs filed in the Dukes case.  SCOTUS.

The New Class Action Challenge

The challenge then is to find the company wide policy that removes the burden of proving that the violation was committed in the same manner, with the same associated penalty for each member of the class.  That challenge is met in the case of the retail industry that requires its workers to report to work in person or by telephone each day to determine if they are scheduled for the day.  A company’s policy for reporting time collides with a California wage order that an employee who is required to report for work is to be paid for “half the usual or scheduled days of work.”  That definition itself opens the door for defining the “usual or scheduled” days of work.  The reference implies it is not the particular day for which the report is required, but some average or predominating number of hours in a typical day of work.

Some Speed Bumps on the Class Action Freeway

Another question in the “report for work” phrasing of the industrial order is what is a “report?”  The question arises with a “call-in” to get the day’s schedule.  The issue is undecided, but the question should be decided not by just the time it takes to make the call, but rather the employee’s management of his or her own plans for the day, as not knowing one’s schedule suspends all other personal planning.

Interesting is that this is not a PAGA case necessarily [PAGA is the “Private Attorneys General Act, a law having characteristics of a class action, but having different procedural requirements, and different allocation of settlement proceeds].  PAGA cases, under current California law, cannot be waived or compelled to be in arbitration.  In contrast, many defense firms are drafting mandatory arbitration agreements for their clients that include class action waivers.  The retail and restaurant industries apparently have not incorporated these agreements.

The Future of the California Employment Law Class Action

The search is on for the lean and efficient class action in view of the impediments placed by recent Supreme Court cases.  The attack is now focused on the company wide policy effecting all employees identically.  The “reporting time” law is one rich class action vein for some specific industries with highly variable daily work schedules that are not decided until the day or week before.  The Courts will decide whether the cost of doing business is to be born by the employee who must adjust his or her personal schedule to the employer, or whether the employer must compensate employees if it wants full flexibility to schedule day to day.  This is essentially a political decision that will reflect the ideological leaning of the reviewing court.