Since the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), plaintiffs in wage and hour cases have urged courts to ignore the decision, arguing that it only applies to discrimination cases, not to wage and hour matters. Surprisingly, considering that the Court was interpreting Rule 23, which applies in every case regardless of subject matter, that argument had found some traction in some district courts. The analysis often was thin and dismissive.
The Supreme Court had already signaled, promptly after Dukes, that wage and hour cases were no different, vacating the Ninth Circuit’s decision in Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanding the matter for reconsideration in light of Dukes. 132 S. Ct. 74 (2011). Confirming that view, last week the Fourth Circuit applied Dukes to vacate a class certification ruling in a wage and hour matter to require more “rigorous analysis.” Ealy v. Pinkerton Govt. Servs., Inc., 2013 WL 980035 (4th Cir. Mar. 14, 2013). The decision further confirms that Rule 23 does not have some special set of more lenient standards in wage and hour cases, and that plaintiffs seeking a Rule 23 class in overtime, misclassification, meal break, and similar cases must, like any other class litigant, demonstrate that there is at least one common question “capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551.