These days, it seems as if the Ninth Circuit and its District Courts aren't operating from the same play book. As has been discussed repeatedly in connection with Brinker Restaurant Corporation, et al. v. Hohnbaum, et al (July 22, 2008), District Courts have repeatedly made news with their decisions undermining wage & hour class actions. In Brown v. Federal Express Corp., (C.D.Cal. 2008) ___ F.R.D. ___ [2008 WL 906517], a district court concluded that a claim of meal period violations was not amenable to class treatment because the court would be "mired in over 5000 mini-trials" to determine if such breaks were provided. Another District Court opinion (White v. Starbucks Corp., 497 F.Supp.2d 1080 (N.D. Cal. 2007)) refused to hold that employers must ensure that their employees take meal breaks. The White v. Starbucks Corp. court guessed that the California Supreme Court, if deciding the issue, would require only that an employer offer meal breaks, without forcing workers to take those breaks.
Instead of joining with the district court, the Ninth Circuit has pushed in the opposite direction. For example, in an unpublished opinion, the Ninth Circuit reversed a substantial portion of a District Court order denying class certification in a wage and hour class action entitled Sepulveda v. Wal-Mart Stores, Inc. Recently, the Ninth Circuit went a step further. In Parra v. Bashas', Inc. (9th Cir. July 29, 2008) ___ F.3d ___, the Ninth Circuit made history (in the Circuit), when it reversed a denial of class certification in a wage & hour class action where the denial of certification was predicated on lack of commonality:
“Although this circuit has, up to now, never reversed a district court finding that commonality was lacking in an employment suit, other circuits have. See, e.g., Forbush v. J.C. Penny Co., 994 F.2d 1101, 1106 (5th Cir. 1993); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir. 1986); Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982).
(Slip op., at p. 9641.) It's only a matter of time before all of this
wage & hour employment law matter and anti-matter collide and destroy the planet.
UPDATE: The problem with the title of this post has been corrected.
UPDATE 2: An astute reader points out that I was a bit sloppy with my labels in this post. The case involves employment law claims (discrimination issues), which do not fall into the subset of employment law claims referred to as "wage & hour" cases. As a very general proposition, many of the policies that govern "wage & hour" cases govern all employement law cases. However, there are special policy considerations that govern matters like discrimination cases such that the distinction between "employment law" and "wage & hour" is not necessarily irrelevant. I actually appreciate the correction because I strive for accuracy.