The California class action lawsuit statute entices employers to commit Labor Code violations in two respects. Foremost, businesses can benefit from paying improper wages and taxes and trounce liability all together without ever arguing whether or not a violation was indeed committed. To achieve certification under California’s class action statute, the following requirements must be satisfied: (1) the parties must be numerous; (2) there must be an ascertainable class; (3) there must be a well-defined "community of interest" in the questions of law or fact affecting the parties to be represented; and (4) class treatment of employees' claims must be superior to other available methods for the fair and efficient adjudication of the controversy. The “community of interest” requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. The law requires employees to move for class certification before the action proceeds on the merits.
Employers have developed many effective techniques to manipulate these requirements to beat class certification. One approach employer’s use is to focus the court's attention on the credibility and sufficiency of the evidence. For example, employers often proffer individual anecdotal stories of liability, reshape the employees' theory of the case, and then claim that individual issues predominate. Moreover, opponents to certification use the “bait and switch” technique to confuse the trial court as to the issues of the case. In one case, for instance, the employer successfully convinced the court to deny class certification since the work of employees varied week by week and assignment to assignment. Moreover, employers can defeat class certification even where employees meet the numerosity, typicality, commonality, and adequate representation requirements.