Introduction
In a recent decision, the U.S. Court of Appeals for the Fourth Circuit vacated certification of a wage-and-hour class action brought by current and former hourly employees in the U.S. District Court for 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, 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, 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. For employers, the decision underscores the importance of distinguishing a uniformly applicable compensation policy from evidence that employees actually performed the same type of uncompensated work under similar circumstances.
The Employees’ Claims and the District Court’s Class Certification Decision
The named plaintiffs asserted claims under the Virginia Wage Payment Act, the Virginia Overtime Wage Act, and the FLSA on behalf of themselves and a class consisting of hourly employees working in the brewery’s brewing, operations, quality assurance, utilities and maintenance departments. The plaintiffs 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 nonexempt brewery employees using 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. Anheuser-Busch appealed the class-certification order to the Fourth Circuit.
The Fourth Circuit’s Reversal
The Fourth Circuit vacated the certification order, 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 “adopted abstract common questions” thus “obscuring more significant subquestions not susceptible to easy classwide resolution.”
- Individualized Inquiries Undermined Classwide Resolution
A common question under Rule 23 must be capable of classwide resolution—that is, a single answer must resolve a central issue for every class member. The court reasoned that 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. Employees in certain departments 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. An employee who never performed a task or was paid during work hours to perform it would not have the same unpaid work claim as another employee. In other words, the differences between employees affected liability rather than just calculation of damages and made class certification inappropriate due to the need for individualized inquiry.
- Differences in Governing Law Between Certain Employment Periods
The Fourth Circuit also highlighted differences arising from the timing of the alleged work and changes in governing law. Anheuser-Busch’s enhanced COVID-19 protocols ended in February 2022, but 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. These differences, coupled with the factual variations, meant that determining liability would risk devolving into employee-by-employee mini-trials. Although individualized damages issues do not ordinarily defeat certification by themselves, the court explained that a common damages model can be considered only after the district court determines that the underlying work and liability issues are sufficiently uniform.
A key factor for the court in reaching its conclusion was what it determined to be a faulty class definition, as the one that plaintiff proposed encompassed all hourly brewery employees. The Fourth Circuit suggested that the district court on remand could either deny class certification outright, or could try to resolve the issues raised by considering narrower subclasses encompassing employees who were subject to COVID-19 protocols, certain statutory periods, or department-specific requirements. However, the court noted that each subclass must independently satisfy Rule 23.
Implications for Employers in the Fourth Circuit
For employers in the Fourth Circuit facing FLSA and parallel 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. Those distinctions may be central to defeating certification where the claims rest on generalized allegations that workers performed uncompensated pre- or post-shift activities.
