Hunton Employment & Labor Perspectives

Employers across the Country are relying on Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 to fight class certification or to file decertification motions.  Many are finding success, and for good reason.  Dukes is a major obstacle to class certification.  However, in a recent California appeals decision, Williams v. Superior Court (Allstate Insurance Company), December 6, 2013, Second District, Div. Eight, 2013 S.O.S. B244043, the appellate court found that the trial court abused its discretion when it decertified a class based on Dukes.  The trial court found that Dukes required that Allstate be permitted to individually litigate its defenses, which included that: (1) a particular adjuster did not work off the clock, or if he did, Allstate did not know about it, and, (2) any time worked off the clock was de minimis.  The Court of Appeals found that Dukes did not “require” decertification.  The Court first distinguished Dukes on grounds that the California’s rules for class certification applied, not federal rules, and damages were being sought in the form of overtime pay.  In addition, the employees were alleging a company-wide policy of failing to pay overtime, so it was not necessary to establish subjective intent as to countless supervisors, as it was in Dukes.  A “pattern and practice” could be found for off-the-clock overtime claims where the employer knew or should have known about the unlawful practice.  These facts were sufficient to support a common claim of fact or law to support commonality for class certification.  The Court also noted that class at issue was far smaller than that in Dukes.