The Second Appellate District in California recently affirmed a trial court’s refusal to certify a class of store managers in Mora, et al. v. Big Lots Stores, Inc.pdf., Case No. B221949 (April 18, 2011).  Whether this case should be treated as a welcome sign for employers, however, remains an enigma wrapped inside a riddle (served with a delicious side salad of suspicion topped with freshly grated paranoia).

The plaintiff store managers claimed they were owed overtime (along with the standard litany of other claims under California law) because they spent the majority of their work hours performing nonmanagerial, nonexempt work.  The plaintiffs moved for class certification, arguing that (i) they all shared the same job classification and job description, (ii) the company classified them as exempt executives based on the duties listed in the job description, and (iii) the “special sauce” of the combo meal, that their duties all varied from the job description in the same respects and to the same extent.  In support of this position, the plaintiffs submitted 44 declarations from current and former store managers that—surely by coincidence and without any prodding from counsel—just happened to describe precisely the same nonmanagerial duties (i.e., stocking shelves, moving merchandise, working a cash register).  They also relied upon testimony from a corporate representative that the company classified all store managers as exempt under the California executive exemption based upon the duties listed in the corporate job description.

In response, the company argued that the activities performed by its store managers varied based on a number of factors, and that they split their time among these various responsibilities in unique ways.  In addition to the deposition testimony of plaintiffs and company representatives, the company also introduced a report from an expert that was based on data collected through direct observation of 40 randomly selected store managers for a full workweek.  (Perhaps the next fertile ground for overtime class actions will be observers used by experts to collect evidence regarding potential overtime class members?)  Based on this data, the expert concluded that there were large differences among the store managers in the functions they performed and how they allocated their time among their responsibilities, and that approximately 2/3 of the managers spent more than 50% of their time on exempt managerial functions.  (EDITOR’S NOTE: The quantitative 50 percent threshold is unique to California state wage and hour law.)

Applying the California “well-defined community of interest” test (which essentially incorporates FRCP 23(a) and (b) concepts of typicality, adequacy and predominance), the trial court denied class certification.  The court found that the variation among the store managers in how they allocated their time among their responsibilities precluded the plaintiffs from establishing typicality and predominance.  (Interestingly, the court also found that the named plaintiffs’ “checkered” work histories precluded them from serving as adequate class representatives.)

On appeal, the plaintiffs argued that the trial court’s decision improperly focused on “issues of fact” that pertained to the merits of their claims.  The appellate court disagreed.  Though it acknowledged the plaintiffs’ showing that all class members were treated as exempt and that they shared the same job description regardless of store location, the court found it notable that the plaintiffs did not allege that the duties listed in the job description were nonmanagerial (and therefore nonexempt).  Rather, the court explained, the plaintiffs were attempting to obtain class certification based upon a factual showing that their actual duties varied in similar ways from the corporate job description, due to a common corporate policy and practice.  Because the trial court had conflicting evidence before it on this point, the appellate court held that it was not an abuse of discretion for the judge to credit Big Lots’ position over that of the plaintiffs.

Fantastic so far, right?  Both the trial court and the appellate court are poking around beneath the warm crust of the plaintiffs’ job description, like sticking one’s finger into a pie to see what flavor it is.  In regard to this point, the expert testimony presented by the employer is of particular note in that it was based on direct observation of a significant sample.  Thus, the expert was able to base his opinion on actual, day-to-day activities rather than boring old statistics and inferences. 

Then things get weird.  The appellate court observed that it would not have been an abuse of discretion for the trial court to certify the proposed class based on the plaintiffs’ evidence.  This is the same evidence that the trial court described as consisting of “identical and undetailed declarations.”  The employer, in contrast, submitted expert testimony based on direct observation of 99,000 work events spanning more than 1,700 work hours.  That’s like comparing a pastel M&M to a life-size chocolate bunny.

The Bottom Line:  In preparing job descriptions, employers should remain vigilant of the fact that such materials are frequently appropriated  (some would say “misappropriated”)  by plaintiffs and their counsel, and that in the past some courts have certified classes based on such descriptions in connection with other evidence.  Where practical and accurate, the potential variations in a particular job classification should be acknowledged and at least minimally described.