Wage & Hour Class And Collective Action Review – 2025

dispute, as individual claims would not be likely pursued due to small potential damages. For these reasons, the court granted the plaintiff’s motion for class certification. The ruling in Hodge, et al. v. North Carolina Department Of Public Safety, 2024 U.S. Dist. LEXIS 22549 (E.D.N.C. Feb. 8, 2024), is another example of plaintiffs being able to overcome the argument that their damages were too individualized to be adjudicated on a collective basis. The plaintiffs, a group of current and former hourly-paid corrections officers employed by the Department of Corrections in North Carolina alleged that the defendant violated the FLSA by not compensating them for pre-shift and post-shift activities beyond their scheduled 160-hour work period in a 28-day “tour of duty.” Id. at *2. The court previously had granted conditional certification of the collective action, and plaintiffs filed a motion for class certification of the Rule 23 claims. The court granted the motion. The court found that the plaintiffs satisfied the commonality requirement under Rule 23. Despite the defendant’s argument that individual inquiries into the compensability of each pre- shift and post-shift activity would be necessary, the court noted that plaintiffs’ theory — that all activities within the prison facility are compensable once officers enter — established a common question of law or fact. The court rejected the defendant’s contention that differences in specific activities performed by class members rendered their claims atypical. The court found that under plaintiffs’ theory, any differences were irrelevant since all such activities were integral to the continuous workday rule. Therefore, the court concluded that the plaintiffs had sufficiently shown commonality and typicality among the proposed class members. The court determined that plaintiffs met the predominance requirement under Rule 23(b)(3) and that despite potential individualized damages determinations, the plaintiffs’ proposed method of proving damages through common proof (such as comparing arrival and departure times and calculating unpaid work time) was suitable. The court concluded that the defendant’s argument that individualized inquiries predominated was countered by the plaintiffs’ assertion of whether the defendant’s policy of not compensating for pre-shift and post-shift activities violated the FLSA was common to all class members. The court also found that a class action was a superior method for adjudicating the wage and hour claims due to judicial efficiency and the relatively small amounts owed to each individual class member. The court also agreed with the plaintiffs that they could adequately represent the class given their class counsel’s experience in complex litigation, including class actions involving correctional officers, which supported their ability to fairly and adequately protect the class’s interests. The defendant also moved to decertify the FLSA collective action, arguing that plaintiffs were not similarly-situated. However, the court denied the motion, finding that the plaintiffs’ allegations supported continued certification of a collective action. A significant decision out of the Ninth Circuit demonstrates the evidence needed to prevent class certification based on common employer policies. In Miles, et al. v. Kirkland’s Stores Inc., 2024 U.S. App. LEXIS 463 (9th Cir. Jan. 8, 2024), the plaintiff filed a class action alleging that two of the defendant’s employee policies violated the California Labor Law, including: (i) the defendant’s rest break policy, which required employees to take rest breaks on store property; and (ii) the defendant’s bag check policy, which required employees to undergo bag checks after clocking out. The district court denied the plaintiff’s motion for class certification. On appeal, the Ninth Circuit affirmed in part and reversed in part. The Ninth Circuit first explained that under California law, employers cannot require employees to work during rest periods. The defendant’s rest break policy, from 2014 to at least 2020, explicitly stated that employees could not leave the store premises during working hours without their supervisor’s permission. The plaintiff contended that the policy violated California labor law by preventing employees from taking breaks away from the store. The Ninth Circuit determined that the defendant uniformly applied the rest break policy during the relevant period such that resolution of the lawfulness of the policy could be established on a class-wide basis. The Ninth Circuit stated that despite a few outlier examples of employees not following the policy, the evidence showed consistent enforcement of the policy across all of the defendant’s stores. The Ninth Circuit thus ruled that the district court erred in concluding that the application of the policy to each potential class member would lead to individualized inquiries. Accordingly, the Ninth Circuit reversed the district court’s order denying class certification on the rest break claim. The bag check policy required a visual inspection of employees’ personal belongings any time they left the store premises, conducted by a manager at the store entrance. The plaintiff argued that the defendant failed to pay employees for the time between clocking out and having their bags checked. The Ninth Circuit affirmed the district court’s denial of class certification for the bag check claim, as there was evidence that the policy was not consistently enforced. The Ninth Circuit reasoned that the nature of the policy, coupled with variations in enforcement, would require highly individualized inquiries into each proposed class member’s circumstances. The Ninth Circuit noted that even if the policy had been uniformly enforced, individualized questions about employee preferences and practices would still predominate, thereby making class treatment impractical. For these reasons, the Ninth

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