Alternatives for Class Certification

According to Rule 23(b), there are three alternative grounds for class certification. If these alternative grounds are inapplicable, then class certification will be rejected. Rule 23(b) is meant to be applied liberally, not restrictively, because courts are usually in favor of class action certification. They have a favorable view because class action certification often produces significant public policy benefits.

Under Rule 23(b)(1), an action is eligible “if individual adjudication of the controversy would prejudice either the party opposing the class (b)(1)(A), or the class members themselves, (b)(1)(B).” Therefore, Rule 23(b)(1) allows class certification if a defendant could be faced with conflicting orders of conduct from individual suits. Class certification under Rule 23(b)(1)(A) is applicable if there is a situation “in which different results in separate actions would result in the opposing parties’ inability to pursue a clear course of conduct.” On the other hand, 23(b)(1)(A) certification is not simply justified when it is apparent that some plaintiffs may win and some may lose in separate lawsuits against the same defendant. Under Rule 23(b)(1)(B), class certification is obligatory when it is evident that individual claims would exhaust the limited fund and disallow succeeding plaintiffs from recovery. Therefore, “a (b)(1)(B) class action is commonly utilized to avoid an unfair preference for the early claimants at the expense of later claimants.”

According to Rule 23(b)(2), actions are “limited to those class actions seeking primarily injunctive or corresponding declaratory relief” (Barnes v. The American Tobacco Company). A (b)(2) class must be unified and homogeneous; therefore, it must be evident that the defendant has acted on grounds that are applicable and relevant to all of the class members. Furthermore, class certification under Rule 23(b)(3) is appropriate when “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”

Essentially, in order for there to be class certification, it must be confirmed and demonstrated that class action litigation is the best choice for the situation. Class action is considered to be superior if there are numerous class members who have small claims that are not worthy of individual adjudication. In other words, if there are multiple people who hold “negative value suits” against the same defendant, then class action is the justifiable superior method. It is important to keep in mind, however, that the combination of individual claims with unique damages can cause a class action case to be unmanageable.

The Development of Class Action Litigation

Class action is defined as “a representative suit filed on behalf of named plaintiffs for themselves and on behalf of a discernible group of people or legal entities similarly situated.” Class action is regarded as an unconventional form of litigation. This regard is due to the fact that the named plaintiffs assume the responsibilities that are not present in individual litigation because they are required to efficiently represent class members that are not present. Essentially, class action was created to be an exception to the rule that litigation must be carried out on behalf of the individual named parties only. Litigation can, therefore, be carried out through representatives on behalf of the class members that are not present.

Class action was originally initiated in the eighteenth century English equity courts. In 1938, the Federal Rules of Civil Procedure was enacted in the United States. These rules outlined the class action system and process. Original Rule 23 distinguished the different types of class action, which included “true”, “hybrid”, and “spurious”. “True” class action concludes the rights of all class members. “Hybrid” class action involves class members who make separate claims against the same property or fund. “Spurious” class action involves class members who make separate claims regarding common questions of fact or law. Unlike “true” class action, “hybrid” and “spurious” class action judgments do not determine the rights of absent members of the class. These three categories were eventually eliminated in 1966, when the Federal Rule 23 was amended.

In Hansberry v. Lee, the Supreme Court pointed out that the roots of class action litigation are “in bills of peace in equity which involved multiple parties.” Class action’s utilization in other frameworks became accepted as it developed throughout time. Significantly, the characterization of class action suits was drawn out in Supreme Tribe of Ben Hur v. Cauble. The characterization follows: “Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without great inconvenience, to make them all parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if they were before the court.” Furthermore, the components that led to the development of class action include: protecting defendants from conflicting obligations, protecting interests of class members that are absent, and providing a course of action that facilitates spreading litigation costs among numerous litigants with similar claims.

Family and Medical Leave

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) contain the provisions for family medical leave. As a qualified employer, you are obligated to provide family and medical leave to your employees. Private employers with 50 or more employees during each of any 20 calendar weeks within a year, as well as all public employers, are covered by the family leave laws. Employers are still covered by FMLA/CFRA if they fall to less than 50 employees. However, if employers have less than 50 employees for 20 workweeks in the current or preceding year, they lose their FMLA/CFRA coverage. Furthermore, it is possible for employers to be covered by FMLA/CFRA while their employees are not eligible for FMLA/CFRA leave.

Fundamentally, similar stipulations are contained in the federal Family and Medical Leave Act and the California Family Rights Act. There are several provisions that do not run concurrently though. For example, leave due to pregnancy-related conditions and disabilities is only covered by the FMLA. Moreover, registered domestic partners are not provided with leave to care for a domestic partner under the FMLA. The CFRA, however, does allow 12 weeks of leave for eligible employees to care for their registered domestic partner. This is a result of the California Family Code, which states that registered domestic partners possess the same legal rights as spouses.

Under the FMLA, an employee qualifies for leave if he/she: is employed by a qualified employer, has worked for that employer for at least 12 months (not necessarily consecutive), has worked for that employer for at least 1,250 hours in the 12 months prior to the leave, and works for an employer with a worksite that consists of 50 or more employees within a 75-mile radius. The circumstances in which an employee may take family leave include: baby bonding, family care, medical leave, leave for a qualifying exigency, and leave to care for a covered service member. If an employee anticipates a need for family leave, he/she should try and provide a 30-day notice to their employer. It is an employee’s responsibility to make a reasonable effort to schedule a leave at a time that will have a minimal disruption on the company’s operation. Of course, it is sometimes impossible to anticipate and plan for a family leave. Therefore, an employer cannot deny leave based on an employee’s inability to provide advance notice of the need for the leave.

Class Certification Requirements

For a class action to be certified, all of the elements of Rule 23 must be satisfied. Basically, in order for there to be a class action case, there must be a particular class and a named plaintiff that is a member of the class. The class needs to be clearly and properly defined. That way, the trial court will be able to easily manage the class. Class certification is made within "the trial court's discretion." Essentially, the party seeking class certification has the responsibility of establishing and maintaining all of the required prerequisites.

A significant prerequisite for class action is individual standing. According to Adair v. Sorenson, "a court must assess standing to sue based upon the standing of the named plaintiff and not upon the standing of unidentified class members." Furthermore, "only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others." Thus, standing is vital to class certification and all stages of class action litigation.

Commonality is also a necessity of class action litigation. In order for there to be “representation” for the group, there must be some facts that are "common" to the group. It is important to note that the commonality requirement is not high or excessive. In essence, “the rule requires only that the resolution of common questions affect all or most of the class members.” In other words, the test for commonality is "qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” Moreover, there will not be class certification if there is a significant conflict of interest between the class members and the class representatives. The plaintiffs must “possess sufficient similarity of interests to the absent class members, to make them proper class representatives.”

For class certification, Rule 23 determines that “the class must be of sufficient numerosity to make joinder impracticable.” The numerosity requirement is evaluated on a case-by-case basis. Therefore, the court has wide discretion and loose parameters when considering numerosity, and they take into account the unique facts and context of each case. In general, when the class includes forty or more members, the numerosity requirement is satisfied. If the class includes twenty-one or fewer members, then the numerosity requirement is not satisfied. The main issue that the court considers is whether the class is too large to make joinder impracticable.

Types of Exempt Employees

Under federal and state laws, certain employees are exempt from hour and wage requirements, which include overtime pay requirements. California’s exemption requirements are more restrictive than federal law. Therefore, some federal standards are ineffective for California employees. It is often difficult to distinguish between exempt and nonexempt employees. Exempt employees usually hold executive, administrative, or professional positions.

In general, the executive exemption pertains to managerial employees. There are situations, however, in which managers are classified as nonexempt because they do not meet the executive exemption. Salaries and responsibilities should be considered when determining whether an employee is exempt. Exempt duties must have a direct relation with managerial work. Some examples of exempt duties include: hiring employees, directing work, assessing employees’ productivity, and ensuring safety of employees. Examples of nonexempt duties include: executing the same kind of work as secondary employees, performing any production work, and performing maintenance work. Sometimes there are instances in which otherwise nonexempt duties are considered exempt duties. An employee who has a managerial title but mostly performs nonexempt duties is referred to as a “working manager.” Working managers are nonexempt employees, but are often misclassified as exempt. Furthermore, assistant managers and apartment managers are typically considered nonexempt.

The administrative exemption pertains to a large variety of employees. It is important to note that many employees whose jobs entail administrative work are classified as nonexempt. Administrative employees who could qualify for an exemption are: administrative or executive assistants, staff employees who are functional rather than department heads, and employees who execute special assignments under limited supervision. In California, it is extremely difficult for an employee to meet the administrative exemption. The California courts focus on whether an employee is involved in running the employer’s business and controlling the execution of its policies. Employees who are ineligible for the administrative exemption do not contribute to policy making and do not have an impact on the operation of the company.

There are distinctive legal requirements that an employee must meet in order to qualify for the professional exemption. According to California’s Wage Order 4, artistic or learned professions are classified as nonexempt. These professions include artists, librarians, photographers, and social workers. There are particular professions that are classified as exempt from the IWC Wage Orders. These professions include physicians, attorneys, engineers, and certified public accountants. The professions that are not exempt from the Wage Orders include nurses, paralegals, unlicensed engineers, and uncertified accountants.

Disability Discrimination

Discrimination is prohibited in the workplace under federal and state laws. Legally speaking, discrimination covers actions taken against employees because of their membership or perceived membership in a particular “protected class.” Treating those people differently and negatively compared with other people not in the same class is discrimination. Everyone is part of a protected class. In California, the protected classes include: age, AIDS or HIV-positive status, marital status, domestic partnership, medical condition and genetic characteristics, race or national origin/ancestry, pregnancy, religion, gender or sexual orientation, harassment, and name change.

There are significant protections for employees with disabilities under the Americans with Disabilities Act, as well as other federal and state statutes. Not only is an employer required to avoid disability discrimination, but they must also provide reasonable accommodation to employees with disabilities. A reasonable accommodation is an adjustment in the workplace that helps a disabled person with the conditions of their employment. It is important to note that an accommodation does not have to be made if it will cause undue hardship to the employer.

If an employer treats an employee with a disability or a history of a disability unfavorably, then it is considered disability discrimination. Furthermore, if an employee is mistreated because of their relationship with someone who is disabled, it is also considered disability discrimination, and is protected under the law. Essentially, it is illegal to discriminate within any aspect of employment, which includes hiring, training, job assignments, and firing. It is also illegal to harass an employee who is currently disabled, has a history of disability, or is believed to have a physical or mental condition that is short-term or minor. The harassment has to be frequent and severe in order to be considered illegal, however. Simple teasing is not covered by the law.

In a recent case, the U.S. Equal Employment Opportunity Commission (EEOC) has sued the Scooter Store for disability discrimination. The Scooter Store, a Texas-based retailer that serves people with limited mobility, allegedly fired an employee because of their request for a temporary medical leave. The employee had a knee injury resulting from psoriatic arthritis, which was incapacitating and required treatment. The Americans with Disabilities Act was violated because the disabled employee was denied a leave request and then let go. Elizabeth Grossman, an EEOC attorney, pointed out that, “Employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities.”

What is Class Action Litigation?

Class actions are unitary proceedings that involve large numbers of claimants. Fundamentally, class actions are representative proceedings. In federal court, the practice of class action requires an understanding and appreciation of the United States Constitution—particularly the concepts of jurisdiction, notice, and due process. It is also important to be aware of the local rules of practice transmitted by the local court. Local courts may have distinct rules that govern the commencement of class action and time limitations.

The overall benefit of class action litigation is that it conserves the resources of not only the parties involved, but also the courts. Essentially, “the class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” According to Phillips Petroleum, Inc. v. Shutts, “class actions … permit the plaintiffs to pool claims which would be uneconomical to litigate individually.” Since class action lawsuits eliminate unnecessary duplication of similar claims, they essentially promote judicial effectiveness. In addition, in the mass tort context, class action is regarded as the most fair and speedy procedure for disposing of claims.

Even though class action lawsuits promote effectiveness, they are usually extremely complex and call for more judicial oversight than other types of litigation. An intrinsic part of class action litigation is the potential for conflicting interests to exist among the absent class members, class counsel, and class representatives. According to Plummer v. Chemical Bank, “the interest of lawyer and class may diverge, as may the interests of different members of the class.” Thus, both the named class representatives and the class counsel hold responsibilities to the absent class members. It is obligatory for the named class representatives and their attorneys to protect the interests of the class members that are absent.

Ultimately, class action litigation must defend individual rights and interests. According to Horton v. Goose Creek Independent School District, “the adequacy requirement mandates an inquiry into the zeal and competence of the representative’s counsel and the ability of the representative to take an active role in and control the litigation and to protect the interests of the absentees…” Hence, it is crucial for the named plaintiffs and their counsel to efficiently credit the interests of the absent class members. If an absent class member is inadequately represented by the named plaintiffs, they will not be bound to a judgment.