Lawful Shmawful: Ninth Circuit Ignores Lawful Written Policy and Uses Statistical Sampling to Certify Class Based on Alleged “Unofficial Policy”
On September 3, 2014, the U.S. Court of Appeals for the Ninth Circuit upheld certification of a class of approximately 800 nonexempt insurance claims adjusters who claimed they worked overtime without compensation despite the employer’s lawful written policy to pay nonexempt employees for all hours worked.
In Jimenez v. Allstate Ins. Co., the Ninth Circuit upheld certification by finding three common questions existed. First, whether Allstate had an unofficial policy of discouraging employees from reporting overtime. Second, whether the employees’ workload forced them to work hours in excess of eight in one day or 40 in one week and third, whether Allstate’s timekeeping method caused an underpayment of overtime.
Specifically, the court found that the adjusters were not responsible for preparing time sheets or clocking in and clocking out. Rather, their time cards were set to a default of eight hours per day and 40 hours per week, and their supervisors could submit “deviations” or “exceptions” for hours worked outside of this schedule. Accordingly, the Ninth Circuit determined that a common question existed regarding whether this timekeeping method led to the adjusters working unpaid overtime.
Notably, the Ninth Circuit held that liability on these issues, as well as the issue of whether the employer should have known that employees were working off the clock, could be resolved via statistical sampling. Importantly, neither the Ninth Circuit nor the trial court orders specified how the proposed statistical sampling would actually resolve these issues. Similarly, neither decision explains how the certified claims will be managed at trial.
Even so, the court held that statistical sampling could only get the plaintiffs so far. Indeed, the court held that plaintiffs would be prohibited from utilizing representative testimony or statistical sampling during the damages phase of the case because a contrary finding would prevent the company from exercising its right to raise individualized defenses.
Based on the Jimenez decision, an employer’s lawful written policy is not enough to insulate it from class certification. The Court’s decision also deviates somewhat from the U.S. Supreme Court’s decisions in Walmart Stores v. Dukes and Comcast Corp. v. Behrend and the California Supreme Court’s decision in Duran v. Superior Court. All of these decisions instruct trial courts to examine how any purportedly unlawful policy is applied to the putative class when deciding to certify the class and how any individualized issues surrounding this application will be managed at trial. While the courts continue to sort these issues out, employers can help themselves by ensuring that employees accurately track and report their hours worked.