In Jiminez v, Allstate Insurance Co., ___ F.3d ___ (9th Cir. September 3, 2014), the Ninth Circuit Court of Appeals affirmed the order of the U.S. District Court for the Central District of California (Judge Kronstadt), certifying as a class action plaintiff’s claims of unpaid off the-the-clock overtime.
Plaintiff was a claims adjuster for defendant employer who claimed that defendant had a practice or unofficial policy of requiring its claims adjusters to work off-the-clock. Therefore, he filed a putative class action on behalf of himself and other claims adjusters working in California for unpaid overtime and related claims. The district court certified the class, finding that plaintiff had presented sufficient evidence to establish three common questions under Rule 23(a), including “(i) whether class members generally worked overtime without receiving compensation as a result of Defendant’s unofficial policy of discouraging reporting of such overtime, Defendant’s failure to reduce class members’ workload after [reclassifying them from salaried exempt to hourly], and Defendant’s policy of treating their pay as salaries for which overtime was an ‘exception’; (ii) whether Defendant knew or should have known that class members did so; and (iii) whether Defendant stood idly by without compensating class members for such overtime.” Additionally, the district court concluded that statistical sampling of class members could accurately and efficiently resolve the question of liability, while leaving the potentially difficult issue of individualized damage assessments for a later day. Defendant appealed, arguing that the common questions identified by the district court would not resolve class-wide liability and that the district court’s approval of statistical modeling violated its due process rights and conflicted with Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
The appellate court disagreed, finding that the district court properly certified the class. First, the court noted that “[e]ach of the three common questions recognized by the district court will drive the answer to the plaintiffs’ claims on one of [the] three elements of their [off-the-clock] claim” under California law. “The close connection between the common questions noted by the district court and the legal test it must apply to determine whether plaintiffs can make out an off-the-clock claim under California law means that these are precisely the kind of common questions that Rule 23(a)(2) and Dukes require.” Furthermore, the court held, the class certification order did not violate defendant’s due process rights because, since Dukes, courts “have consistently held that statistical sampling and representative testimony are acceptable ways to determine liability so long as the use of these techniques is not expanded into the realm of damages.” Moreover, the order preserved defendant’s opportunity to raise any individualized defenses at the damages phase.