Class certification is the seminal moment in wage
and hour cases. The decision to certify a class will determine whether the case
has the potential to be bet-the-company litigation, or merely litigation with a
few discontented employees. Wal-Mart v. Dukes (opinion here)significantly altered
the rules by appropriately shifting the focus in class actions to the existence
(or lack thereof) of individual issues that distinguish and separate class
members from each other. Even before the Supreme Court decided Dukes,
however, courts were tuned-in to this issue. For example, consider Mickle v.
Wellman Products, LLC, in which we scored a tremendous victory for our
client by winning the reversal of the trial court's class certification.
The plaintiffs in Mickle, four ex-employees,
sought the certification of a class of employees for alleged unpaid wages. The
issue: unpaid "gap time"-the time between when the employees clocked in/out and
started/ended their work days.
To avoid any editorialization of my own case, I'm turning
over the remainder of this post to the words of the Oklahoma Court of Appeals.
The Court described the challenged pay practice:
The hand scanned times are subject to "ETime Punch
Rounding." Under the rounding system, if an employee scans in prior to the
start time of his or her shift, the employee's start time is rounded to the
beginning of the shift. If an employee scans after the start of his or her
shift time, the rounding defaults the employee's start time to the next quarter
hour increment. At the end of the shift, if an employee scans out early, the
employee's end time is rounded to the prior quarter hour increment. If an
employee scans out late, after the end of his or her shift, the employee's end
time is rounded the prior quarter hour increment.
The hand scanned times are not the sole method used by
Wellman to determine payroll. Before an employee's time is submitted to
payroll, each employee's default rounded ETime is reviewed and manually edited
by a Lead to reflect the time an employee actually worked. The evidence
submitted by Wellman demonstrated the Leads sometimes manually rounded punch
time to the benefit of an employee. The ETime records are then submitted to
payroll for editing and for use in creating weekly pay.
The plaintiffs alleged:
ETime always rounded in Wellman's favor and the times
recorded by the hand scanner and the rounding system provided common proof of
all hourly employees' uncompensated work during the time period between the
hand scan and the shift buzzer.
The company argued:
[C]ertain proposed class members may not have performed
work-related activities during the gap period. At the hearing, several
employees ... testified that during the gap periods, they may socialize with
other employees, eat a meal in the break room, wash their hands, shower and
change clothes, smoke cigarettes, or read the newspaper. These employees also
testified that ten minutes before the buzzer sounded at the end of their shift,
they would clean-up their work site in preparation for the next shift. The time
record evidence shows routine individual adjustment of pay time both ways for a
variety of reasons, pursuant to the gap period policy.
The Court held:
[T]he common issue of an allegedly flawed time-keeping
method is "swamped by individual factual inquiries into the activities of each
employee during the gap periods." ... Because Wellman did not exclusively rely on
the hand scanned times and the ETime punch rounding method to determine payroll
and each claim for unpaid overtime work must be examined to determine if such
work was authorized, we hold individualized proof concerning each hourly
employee's activities during the gap period is indispensable to each employee's
[W]e conclude issues as to whether each employee was
engaged in work or non-work activities during the gap period are too
individualized to warrant class treatment for all hourly employees....
The full opinion of the Oklahoma Court of Appeals, which the
Oklahoma Supreme Court has declined to review, is available for download from
the National Chamber Litigation Center.
Visit the Ohio Employer's Law Blog for more
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