Decision: In Ogiamien v. Nordstrom Inc., the US District Court for the Central District of California denied the plaintiff’s motion for class certification in a wage-and-hour action accusing Nordstrom of failing to pay its employees for time spent waiting for and undergoing bag checks. The court refused to certify a class of all non-exempt employees on the basis that the class did not meet the predominance requirement. The court found that the case “undisputedly involves individual inquiries regarding liability”; as the plaintiff conceded during her deposition, under Nordstrom’s policy, employees were not subject to the security checks if they did not bring a bag to work. Thus, because a “bag-toting employee” was necessary to trigger the security check, the court found no liability could attach with regard to any employees who did not carry bags to work, and the proposed class inevitably included those employees. The court highlighted evidence provided by defendant’s expert that more than one-quarter of employees observed by the expert departed Nordstrom stores without a bag and most employees that departed with a bag did not undergo a security check. The court also focused on the fact that the policy itself provided for non-uniform application, in that it called for random checks. Concluding that this was, therefore, not a case of lapses in enforcement of an invalid policy, the court found that the plaintiff could not establish liability across the proposed class.
Impact: This decision highlights the continuing pattern of courts examining the predominance requirement closely and focusing on whether individualized liability inquiries exist in denying class certification. The court’s focus on the non-uniformity of the policy itself is important: an employer that can only show “lapses in enforcement” but that has to contend with a facially invalid policy is likely to face a tougher battle against certification. Also notable is the court’s reliance on the observations of Nordstrom’s expert, which helped demonstrate that the number of proposed class members not subject to bag checks was significant.