Category Archives: Class and Collective Actions

Quirky Question #278: DOL Doubles the FLSA Salary Basis Threshold

Question: Where can I find more information about the DOL’s doubling of the FLSA salary basis threshold? Did they make other changes? As an employer, what does this mean for me? And how long do I have to prepare?


Question #275: Can We Take A Stand On Employees Sitting?

Question: Some of our retail company’s employees in California are demanding chairs to sit in while they work. Management thinks it appears unprofessional to have workers sitting, but I hear the employees might have a legal right to sit down. Should management take a stand?


Quirky Question #268: E-Sign Away!

Question: We have our electronic handbook and arbitration agreement online, and all employees sign both electronically.  I saw a news blurb that a California court last year refused to enforce an arbitration agreement that was electronically signed.  Can’t we use electronic signatures in California?


Quirky Question #242 – Policing Break and Time Records Pays Off


We are a California employer.   After all the publicity surrounding class actions over meal and break periods, we instituted automatic warnings if employees take too long or too short a meal or rest break. Is anyone really enforcing this kind of discipline or are we wasting our time? Answer→

FINRA Arbitration Rules Expanded to Exclude Collective Actions

FINRA Arbitration Rules Expanded to Exclude Collective Actions

FINRA’s ban on formal class-style employment claims is now complete. On May 4, 2012, the comment period closed on a proposed change to Rule 13204 of the FINRA Code of Arbitration Procedure for Industry Disputes (“Industry Rule 13204”). See S.E.C. Release No. 34-66774. The change, approved by the Securities and Exchange Commission, will soon expand FINRA’s existing prohibition of class-action arbitrations to bar collective actions as well. Answer→

Wal-Mart v. Dukes, No Glue in Aisle 23

Walmart v. Dukes, No Glue in Aisle 23

The most sweeping putative employment-discrimination class action in history was not too big to fail. The United States Supreme Court has rejected an effort by three female employees of Wal-Mart to represent a class of some 1.6 million women who had been employed by the company at its 3,400 stores nationwide at any point since 1998 and who allegedly had experienced gender discrimination in the areas of promotions and compensation. The class, proceeding on both disparate-impact and disparate-treatment theories, sought billions of dollars in backpay, as well as injunctive and declaratory relief, to redress Wal-Mart’s alleged violations of Title VII. After the case was filed in 2001, the United States District Court for the Northern District of California certified the class in 2004. The Ninth Circuit affirmed in a 2010 en banc ruling.

For a case to proceed as a class action in federal court, plaintiffs must demonstrate all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: that (1) the class is sufficiently numerous that “joinder of all members is impracticable,” (2) questions of law or fact are “common to the class,” (3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” and (4) “the representative parties will fairly and adequately protect the interests of the class.” Additionally, they must satisfy one of three standards under Rule 23(b). The Dukes class was certified under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

A unanimous Supreme Court reversed the grant of class certification on June 20, 2011. The Court did not decide whether Wal-Mart had, in fact, discriminated against the women, only whether they could proceed as a class. Justice Scalia authored the opinion of the Court, concluding that class certification was improper under Rules 23(a)(2)—the “commonality” requirement—and (b)(2). Four Justices joined the Court’s opinion with respect to Rule 23(b)(2) while dissenting on the commonality issue. Answer→

Courts Must Referee Expert Battles In Deciding Class Certification Question

Mark’s Analysis of Class Certification Issues

The Minnesota Court of Appeals recently addressed the question of whether a court could weigh competing evidence at the class certification stage.  In deciding that issue, the Court also clarified the standard of proof necessary to certify a class.  Whitaker v. 3M, 764 N.W.2d 631 (MN Ct. App. 2009).  In the past, many courts had been reluctant to enter the fray of competing expert opinions when deciding whether to certify a class, particularly if those opinions also went to the merits of the lawsuit.  Many courts had also held class proponents to a relatively low standard when assessing whether they had met the class certification requirements set forth in the rules of civil procedure. Answer→