Common Injuries in Class Cert.

Kizer v. Tristar Risk Mgmt., No. G052558 (D4d3 Jul. 27, 2017)

The trial court denied class cert in a putative wage-and-hour class action brought by insurance claims examiners. The central issue is whether the members of the class were misclassified as exempt administrative employees under the pertinent wage order. Plaintiffs convinced the court that that issue could be tried class-wide. But what they failed to do was to convince the court that, if the class should have been non-exempt, they were subject to an official or de facto policy that required the class members to work overtime. Indeed, Plaintiffs didn’t present very much in the way of evidence that any of the class members worked overtime. Absent that proof, the court found that a common fact issue didn’t exist, much less predominate. It denied cert on that ground and because plaintiff’s claims weren’t typical.

On appeal, plaintiff tries to frame the issue of if and how much overtime each class member worked as addressed only to damages. Individualized damages issues, after all, don’t preclude certification, so long as liability is subject to class-wide resolution. But as the court explains here, that framing isn’t right because there’s a difference between the existence of a common injury and the amount of damages. Whether there was a company-wide overtime requirement goes to liability because misclassification alone doesn’t make the employer liable. (Technically speaking, the exemptions are an affirmative defense.) An employer violates the Labor Code only when an employee who has been misclassified as exempt is required to do stuff that Labor Code says non-exempt employees can’t be made to do. Stuff like working overtime hours without getting time-and-half. And without a company-wide policy (formal or not) imposing such a requirement, liability can’t really be addressed on a class-wide basis.

Affirmed.