Not surprisingly, the U.S. Supreme Court’s Dukes v. Wal-Mart decision caused many class action defendants to file motions asking trial courts to revisit prior class certification rulings. One such motion for decertification was recently denied in Driver v. AppleIllinois. In that action, the defendant argued that Dukes required the decertification of a wage and hour class. The trial court disagreed, distinguishing Dukes from Driver on grounds that class treatment in Dukes would have required the assessment of numerous subjective employment decisions, whereas class treatment in Driver would involve “strictly objective” issues of law and fact. See Driver v. AppleIllinois, No. 06-C-6149, Slip op. at 5 (N.D. Ill. Mar. 2, 2012) (order denying motion to decertify) (available here).
In Driver, the defendant’s decertification motion came at an unusually late stage in the case, after notice had been distributed to class members and merits discovery had been completed. See Slip. op. at 2. The defendant sought a further review of the certification decision following the issuance of new authority, including Dukes and several decisions from within the Seventh Circuit “elucidating the application of [Dukes v.] Wal-Mart.” Slip op. at 2.
In denying the motion to decertify, the Driver court emphasized that Dukes was “significantly different” from Driver. Slip. op at 4. The Dukes class lacked commonality because the plaintiffs could not show a policy of gender discrimination applicable to all members of the class. Rather, the plaintiffs’ allegations were predicated on the notion that local store managers exercised their discretion in a manner that created an unlawful disparate impact on female employees. Slip op. at 4 (quoting Dukes v. Wal-Mart, 131 S. Ct. 2541, 2548). In contrast, the Driver class shared a common question: “whether AppleIllinois required its tipped employees to engage in duties unrelated to their tipped occupation without paying them at the minimum wage rate.” Slip op. at 5. Unlike the Dukes gender discrimination claim, the Driver class’ claims do not require any proof of individual discriminatory intent. Rather, “[t]he analysis is strictly objective.” Id.
The Driver court’s analysis distinguishing Dukes from wage and hour class actions is potentially advantageous authority for plaintiffs’ counsel as they seek certification. Notably, the minimum wage and employee classification laws at issue in Drivers are quite similar to California’s comparable statutes.
Driver may also prove useful in wage and hour actions where the relevant employment policy is unofficial (and thus often referred to as a “practice”). Analogizing to an earlier Seventh Circuit ruling, the Driver decision concluded that “[t]his case parallels the Ross case, in which declarations supported the plaintiffs’ theory that the defendant enforced an unofficial policy of denying employees overtime pay that was lawfully due.” Slip op. at 6 (citing Ross v. RBS Citizens, N.A., No. 10-3848, 2012 WL 251927, *7 (7th Cir. Jan. 27, 2012)).
Between the Driver decision, Ross, and Messner v. Northshore University HealthSystem, No. 10-2514 (7th Cir. Jan. 13, 2012) (reversing denial of certification), the Seventh Circuit has made a substantial contribution to post-Dukes jurisprudence. Above all, it appears that the death knell for state law wage and hour class actions was sounded prematurely, as post-Dukes jurisprudence has distinguished these cases from gender discrimination claims.