Mcle Self-study: Duran v. U.s. Bank: Employee's Perspective

• Jurisdiction: California,United States
• Author: By Steve Zieff
• Publication year: 2014
• Citation: Vol. 28 No. 5

MCLE Self-Study: Duran v. U.S. Bank: Employee's Perspective

By Steve Zieff

Steven Zieff is Of Counsel with Rudy, Exelrod, Zieff & Lowe, LLP, a San Francisco firm specializing in representing plaintiffs in employment disputes. Mr. Zieff developed the firm's wage and hour practice and has been instrumental in pioneering the prosecution of wage and hour class actions. Mr. Zieff is a fellow of the College of Labor and Employment Law and is a recipient of the California Lawyer Attorney of the Year award.

Introduction

Try as Big Business might to spin Duran v. U.S. Bank National Association¹ (Duran) as substantially changing the case law and altering the playing field for overtime misclassification class actions, that is simply wrong. Duran reaffirms the continued availability of class actions to remedy overtime pay violations. Although the California Supreme Court overturned the trial court's judgment because of "serious" flaws with the trial plan, the court took a measured approach in adhering to its precedents. The court repeatedly cited with approval and reaffirmed the holdings of Sav-On, Bell, and Brinker.² Duran therefore supports the appropriate use of representative testimony and sampling and statistical evidence when it is reliable and based on sound analysis, so long as defendants are allowed a fair opportunity to litigate affirmative defenses.³ After Duran, trial courts' certification determinations and decisions about whether statistical evidence may be used to prove classwide liability and/or damages will continue to depend on the facts of the case, the record developed, and the trial court's exercise of its sound discretion.

Here are several take-aways from the Duran decision that should inform class action lawyers:

Duran Does Not Suggest That Misclassification Class Actions Are a Thing of the Past

Duran does not hold that misclassification cases are generally inappropriate for class treatment. The facts and record developed in any particular misclassification case will determine whether certification is appropriate. A few key points should be front and center:

• Defenses that raise individual questions about the calculation of damages will not defeat class certification.⁴
• Individual issues will not necessarily overwhelm common issues in misclassification cases involving exemptions, dependent on how much time employees spend on various tasks:

Where standardized job duties or other policies result in employees uniformly spending most of their time on nonexempt work, class treatment may be appropriate even if the case involves an exemption that typically entails fact-specific individual inquiries.⁵
A class action trial may determine that an employer is liable to an entire class for misclassification, if it is shown that the employer had a consistently applied policy or uniform job requirements and expectations contrary to a Labor Code exemption, or if it knowingly encouraged a uniform de facto practice inconsistent with the exemption.⁶

As Justice Liu pointed out in his concurring opinion, in misclassification cases involving the outside sales exemption, where the focus is on "the employer's realistic expectations" or "the realistic requirements of the job," "it is not difficult to contemplate that employees in a given job classification will often be either wholly exempt or wholly nonexempt, since a job classification often entails a common set of employer expectations or requirements for performance of the job."⁷

The Trial Court Must Rigorously Analyze Whether Individual Issues and Questions are Manageable

The Duran opinion squarely holds that a class action may proceed, so long as the trial management plan allows for "the litigation of relevant affirmative defenses, even when these defenses turn on individual questions."⁸ At the same time, Duran ...