Hunton Employment & Labor Perspectives

In a recent decision, the U.S. Court of Appeals for the Fourth Circuit vacated Rule 23 certification of a wage-and-hour class action brought by current and former hourly employees in the Eastern District of Virginia alleging that their employer failed to pay brewery employees for required pre- and post-shift work.

In Overby v. Anheuser-Busch, LLC, No. 25-1520, the court held that the district court defined the proposed class and its purported common questions at too high a level of generality. The opinion reinforces the Fourth Circuit’s recent emphasis, particularly following Stafford v. Bojangles’ Restaurants, Inc., 123 F.4th 671 (4th Cir. 2024), that Rule 23 certification requires a close examination of whether the same evidence can establish liability across the proposed class—not simply whether employees point to a broad, common pay practice.

The named plaintiffs asserted claims under the Virginia Wage Payment Act, the Virginia Overtime Wage Act, and the FLSA. The employees alleged that they were generally paid for their scheduled shifts rather than based on badge-swipe data reflecting their arrival at and departure from the facility. They also alleged that the company required compensable work outside scheduled shift hours, including donning and doffing personal protective equipment, complying with COVID-19 screening and safety procedures, attending shift-handoff meetings, and securing or putting away tools. The district court certified a class encompassing virtually all non-exempt brewery employees who use the company’s timekeeping system from July 1, 2020 through final disposition of the case. It concluded that common questions included whether Anheuser-Busch failed to pay employees for mandatory pre- and post-shift activities and whether that alleged failure violated Virginia law.

The Fourth Circuit reversed, finding that the district court improperly assumed the answers to important liability questions (such as whether all class members performed off-shift work and whether the employer required the work to be performed off-shift) because it “adopt[ed] abstract common questions” regarding the employer’s pay policy and practices, thus “obscur[ing] more significant subquestions not susceptible to easy class-wide resolution.”

The court held that a common question under Rule 23 must be capable of class-wide resolution—that is, a single answer must resolve a central issue for every class member. The court reasoned that “relying solely on generalized company policies will typically defeat class-action certification because these formulations too often disguise the dissimilarity of prospective class members,” and that was the case here because deciding whether Anheuser-Busch maintained an unlawful practice of failing to compensate mandatory off-the-clock work would first require individualized determinations about whether particular employees actually performed the claimed tasks, whether they did so outside their shifts, and whether the company required the activity.

The record showed material variation on each issue. Some employees did not consistently participate in handoff meetings, while others performed those meetings only in particular positions, for limited periods, or not at all. Likewise, while baseline PPE was required in industrial areas, employees differed in the equipment they used and in where and when they put it on or took it off. Some changed at home, some did so during paid shift time, and others used locker rooms before or after their shifts. As to the COVID-19 procedures, some of the certified class included employees hired after those protocols had ceased. Therefore, some class members could not have claims related to those procedures. In addition, Virginia’s overtime statutory framework changed in July 2022. The court observed that class members could be subject to different legal standards depending on their employment periods: a pre-amendment state-law standard, a post-amendment standard that tracks the FLSA, or both. All of these differences, coupled with the factual variations, meant that determining liability would risk devolving into employee-by-employee mini-trials.

For employers in the Fourth Circuit facing state-law off-the-clock claims, Overby provides meaningful ammunition against a common argument by class representatives and their counsel that a uniform pay practice automatically creates a certifiable class. Employers should maintain clear policies requiring employees to report all time worked, provide accessible mechanisms for recording and correcting off-schedule work, train managers to enforce those procedures consistently, and investigate reports of unpaid work promptly. Just as importantly, employers defending wage-and-hour collective or class actions should develop evidence concerning differences in job duties, locations, timing, employee practices, and applicable legal periods. Overby  serves as an important reminder that those distinctions are central to defeating Rule 23 certification where the claims rest on generalized allegations that workers performed uncompensated pre- or post-shift activities.