An employer permits its employees to trade shifts voluntarily. A nice favor, right? Unfortunately, there are claimants ready to assert class action wage and hour claims when the employees’ own decisions create potential overtime issues.

In Lessard v. Skywest Airlines, Inc., Case No. 2:11-cv-03769-JHN-VBK (C.D. Cal. Oct. 24, 2011), the plaintiffs were former ticket agents for Skywest Airlines in California. They asserted that the company permitted employees to trade shifts among themselves, but that it failed to take into account California overtime requirements when the trades resulted in them working over 40 hours per week or 8 hours per day. Part of the reason this was an issue is that section 13 of the federal Fair Labor Standards Act has an exemption for airline workers, so that the state overtime claims may be the only ones that may apply. Perhaps important to the outcome of the case, the trades were voluntary among employees, rather than shifts dictated by the employer.

The plaintiffs also contended that Skywest failed to include various performance rewards – bonuses – into the regular rate for overtime purposes. They asserted the standard array of California Labor Code violations and sought to represent two state-wide class of Skywest agents, one for the shift trade issues, and the other for alleged bonus calculation claims.

The district court denied certification of both classes. The district court cited the recent decision of Dukes v. Wal-Mart Stores, Inc.,131 S. Ct. 2541 (2011), but decided the case on issues that were not directly discussed in that case. It found that neither class met the Rule 23(b) predominance requirement. While the reasons differed slightly between the two proposed classes, the key problem with both was that while the plaintiffs alleged that a common policy existed, they never identified what that policy was and even their own submissions suggested variations in the putative class members’ experience. The court also rejected plaintiffs’ identification of a general issue regarding the validity of the relevant California Wage Order, finding that it was but one of many issues in the case.

The court concluded that Rule 23(b) was not satisfied, and denied class certification for both proposed classes.

The Bottom Line: Plaintiffs seeking to assert class claims need to demonstrate a common policy or issue whose resolution will determine the outcome of the case.