Ninth Circuit Denies Rule 23 Class Certification Based On Actual Duties
Is the GOP slipping something into the water supply in San Francisco? Do they know some dirty secrets about some Ninth Circuit judges? Has the whole world gone crazy?
The Ninth Circuit’s decision a few days ago in Delodder v. Aerotek, Inc. continues an encouraging—and surprising—trend in Ninth Circuit wage and hour law toward emphasizing actual duties in overtime misclassification cases rather than standardized job descriptions and other such materials. The plaintiffs in Delodder claimed that they were misclassified as exempt for overtime purposes under California state law. They sought class certification under Rule 23(b)(3) on the basis that their work responsibilities were subject to the same common employment policies. The district court, however, denied class certification based on evidence of variations in the plaintiffs’ actual duties, and the Ninth Circuit affirmed. In particular, the Court of Appeals agreed that it is proper to accord greater weight to variations in actual responsibilities than to standard corporate policies. The Court also emphasized the individualized nature of the inquiry regarding whether an employee exercises sufficient discretion to be classified as exempt.
The Ninth Circuit’s view of the California administrative exemption expressed in Delodder is also encouraging. The Delodder plaintiffs claimed that their duties were not “directly related to management policies or general business operations.” Referring to this argument as a “losing theory,” the Court agreed with the district court that the plaintiffs were engaged in “meeting the needs of Aerotek’s customer companies,” which the Court found is within the scope of the administrative exemption’s “general business operations” prong.
The Delodder decision would be an encouraging sign on its own. But, viewed in line with Ninth Circuit cases such as Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009), Mevorah v. Wells Fargo Home Mortg., 571 F.3d 953 (9th Cir. 2009), and Marlo v. UPS, Inc., 2011 U.S. App. LEXIS 8664 (9th Cir. Apr. 28, 2011), it seems that it may be part of something bigger.
Of course, it’s still the Ninth Circuit, so who knows?
The Bottom Line: The Ninth Circuit is issuing opinions that appear to rein in many lower court holdings that made certification of wage and hour cases easier for plaintiffs.