1. What is a class action? To understand what a class action is, it is better to start with the basic individual litigation concept. Normally, parties bring their own disputes to court and litigate the case against the other parties who have been officially designated a parties and served with process and understand that they are parties to the lawsuit. Class actions, on the other hand, are brought against a defendant, but the claims are being asserted on behalf of parties who are not actually in the courtroom or named as individual plaintiffs. In the employment context, the plaintiffs are usually represented by at least one named plaintiff who is bringing claims that he or she has an individual on behalf of any other worker to is similar to the named plaintiff. The named plaintiff has to prove to the court that there is a clear class definition that can be arrived at, and the individuals who meet that definition can be ascertained in some manner. This proof is required to be presented when plaintiff brings their motion for class certification as described below. Class actions were developed for a number of reasons. One is to address the problem of  “negative value claims” as described by the court in Baker v. Microsoft:

In particular, class actions are an important way of resolving so-called “negative value claims”; that is, claims that are legitimate, but cost too much to litigate individually. Thus, denying class certification to claims that can be treated in the aggregate is equivalent to denying those claims on the merits.

In addition, because class actions can resolve claims for many individuals in one case, it can potentially save the parties as well as the courts time and costs when compared to requiring multiple cases for individuals involving the same facts and legal issues.

2. Who can bring a class action in the employment context? Any employee or worker who believes that they have suffered an injury while working for an employer could bring a class action on behalf other workers or employees. The complaint filed by the named plaintiff will set for the allegations that they believe make the case suited to be a class action, but the case will not become a class action until the Plaintiffs file a motion with the court asking for the case to be certified as a class action. There are certain requirements that the Plaintiff must prove to the court in order to have the case certified as a class action, and this determination is usually not made early in litigation. The parties will conduct discovery into the allegations and the issues of the case in order to develop the arguments supporting their position of whether or not the case can be certified as a class action. The determination of class certification has a large impact on the case, as the Court in the Microsoft case described:

As the Supreme Court has recognized, the decision whether or not the class is certified is usually the most important ruling in such a case; once a class is certified, plaintiffs who brought claims of even dubious validity can extract an “in terrorem” settlement from innocent defendants who fear the massive losses they face upon an adverse jury verdict. See, e.g., AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1752 (2011) (“Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.”).

3. How many employees does there need to be for a class action? In California, there is no set rule for how many individuals need to be in the putative class in order to meet the requirement of “numerosity.” Under Federal law, generally the numerosity element is met if the number of potential class members exceeds 40 people.

4. If the employer can prove it did not violate the law, is this a defense to having a class certified? No. As set forth above, usually before the court is asked to determine the merits of plaintiff’s allegations, the court requires the plaintiff to bring a motion for class certification. The motion for class certification only deals with the requirements regarding whether the case should be certified as a class action, and the court is not allowed to make a ruling on class certification based on the merits of the case. Courts have noted, however, that sometimes when conducting this analysis that there will sometimes be overlap with the merits of plaintiff’s underlying claim.

5. If class certification is denied, can another class action be filed on the same claims? It depends on the facts. Court have recently grappled with this issue, and as noted by the court in the Microsoft case, this has been an issue for courts:

Thus, plaintiff’s counsel need not present meritorious claims to achieve victory; they need obtain only a favorable class certification ruling. In light of the minimal costs of filing a class complaint, an obvious strategy suggests itself: keep filing the class action complaint with different named plaintiffs until some judge, somewhere, grants the motion to certify. So long as such a decision is reached while the plaintiffs who have not yet filed are numerous enough to justify class treatment, the plaintiffs will have a certified class that they can use to extract an in terrorem settlement. … If in terrorem settlements are bad, duplicative lawsuits employed to extract such a settlement are worse. It is no surprise, then, that appellate courts have long been trying to solve this problem.

For example, in California the case Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, held that two cases filed against May Department Stores prior to the Alvarez case precluded the Alvarez case from proceeding as a class action. The court, in applying the collateral estoppel doctrine, found that the two prior cases sought to certify the same class of employees, concerned the same policies, concerned the same time period, and one of the prior cases had the same attorneys and therefore did not allow the third filed class action to proceed. The principle behind the collateral estoppel doctrine is to prevent re-litigation of issues previous argued and resolved in an earlier proceeding. As the court set out, in order for the doctrine to apply, the issues must be identical to an issue that was actually litigated and decided to be final on the merits. Photo courtesy of Phil Roeder

In Muldrow v. Surrex Solutions Corp., the California Court of Appeal upheld a trial court’s determination that the plaintiffs could not maintain a class action for proposed meal period class given the holding by the California Supreme Court in Brinker v. Superior Court (click here for additional information on the Brinker ruling). The appellate court had previously upheld the trial court’s denial of class certification, but the California Supreme Court granted review of the case pending its decision in Brinker. Once Brinker was decided, the Supreme Court transferred the case back to the appellate court for a decision applying the new analysis set forth in Brinker.

In Muldrow, the appellate court found that the trial court properly denied class certification for the meal break class.  It stated, “In Brinker, the Supreme Court held that an employer need only provide for meal periods, and need not ensure that employees take such breaks.”

In support of its conclusion that the trial court properly denied class certification as to the meal break claims, the court quoted the following language from the Brinker decision:

An employer’s duty with respect to meal breaks…is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.

Plaintiffs argued that they should now be able to present evidence that the employees were “discouraged” from taking meal breaks given the Brinker decision. The appellate court rejected this request as this was the first time plaintiffs raised the issue, and there were a number of cases that plaintiffs could have relied upon for this theory prior to the Brinker decision.