Most who follow employment law have heard about the U.S. Supreme Court's decision in Wal‑Mart v. Dukes, which overturned certification of a class action sex discrimination case brought on behalf of 1.5 million current and former female Wal‑Mart employees.
Although Dukes was a sex discrimination case, the decision is likely to affect class actions in other areas of the law, including wage-and-hour litigation.
Impact on class actions
- Dukes makes it more difficult for plaintiffs to certify very large classes without concrete evidence of a common corporate policy or practice tying class members' claims together. That issue is critical where alleged violations arise from the actions of individual supervisors, such as claims that employees were required to work off the clock despite written policies to the contrary.
- It is uncertain how courts will apply Dukes to collective actions under the Fair Labor Standards Act. Dukes addressed Rule 23 class certification; FLSA collective actions proceed under a different standard, which is generally a lower bar for preliminary certification, but Dukes will likely influence judicial analysis.
- One likely effect is that more wage-and-hour cases will be filed in state court where state certification standards are more permissive, potentially shifting some litigation away from federal courts.
Insights for employers
The decision underscores the value of clear, well-documented company policies and consistent implementation. A written policy that prohibits off-the-clock work and requires accurate timekeeping, together with training and audits, strengthens an employer's defense against class or collective claims alleging widespread violations.
At the same time, Dukes heightens scrutiny of claims that rest on a widespread corporate practice, such as systematic misclassification of a job title as exempt from overtime.
Employers should also consider compliance and insurance implications; see Employment Law and Insurance Considerations for related guidance.
For employers monitoring federal rules and guidance that affect wage-and-hour obligations, see U.S. Department of Labor Enforces New Home-Care Final Rule for an example of recent regulatory activity and its operational impact.
The bottom line: review and update wage-and-hour policies regularly, train supervisors, and audit compliance. If you'd like help implementing these steps, talk to an agent.
Article courtesy of Worklaw® Network firm Franczek Radelet.
Frequently Asked Questions
How did Dukes change class certification analysis?
The decision emphasized that plaintiffs must show commonality across class members by pointing to a companywide policy or practice, not just individual manager decisions.
Does Dukes eliminate wage-and-hour class or collective actions?
No. Dukes makes some large Rule 23 class certifications harder, but cases based on a uniform corporate policy or clear common practice can still proceed, and FLSA collective actions follow different standards.
What practical steps should employers take now?
Employers should review and update wage-and-hour policies, train supervisors, maintain accurate time records, and conduct periodic audits to demonstrate consistent compliance.