Judges Reject Employers’ Attempt to Put Up Their “Dukes”

In 2004, in the case of Dukes v. Wal-Mart, a federal district court judge in an employment discrimination case in California certified a class of approximately 1.6 million female Wal-Mart employees, thus allowing them to bring a single class action lawsuit against Wal-Mart. The women suing Wal-Mart sought compensation for gender discrimination that they allegedly faced while working for the retail giant. The attorneys representing these women had argued that the consolidation of their clients’ claims made sense because a common policy–Wal-Mart’s actively promoted and allegedly sexist culture–had contributed to the discriminatory actions of various local store managers. And the district court agreed.

However, Wal-Mart appealed the district court’s decision. First, it made its case to the Ninth Circuit Court of Appeals, arguing that there was insufficient evidence of “commonality” between the women’s claims to justify the consolidation of those claims into a single lawsuit. When the appellate court affirmed the district court’s ruling, Wal-Mart appealed to the U.S. Supreme Court. The Supreme Court heard Wal-Mart’s case, and, in June of this year, ruled in the company’s favor. The class action lawsuit was killed, and the 1.6 million class members were left to pursue their own individual lawsuits in an effort to obtain legal relief on their discrimination claims.

Since the Supreme Court’s decision, employers have cited the Dukes case to support their legal arguments that their employees should also be barred from bringing class action lawsuits against them. Employers have relied upon Dukes not only in their efforts to resist new class certification motions, but also in their efforts to decertify existing classes that were certified prior to Dukes. However, at least in the context of cases involving claims for minimum wage and overtime pay, many courts are rejecting these arguments and failing to see Dukes as an obstacle to class certification.

For example, in late August 2011, a federal district court judge in Iowa rejected Tyson Food’s argument that employees at one of the company’s Iowa meat processing plants should be barred from consolidating their “off the clock” wage claims. The employees alleged that Tyson’s policy of not paying them for the time they spent putting on, taking off, and cleaning their work clothing and equipment violated state and federal wage and hour laws. Thus, as the court noted, the employees were all victims of the exact same policy–or they weren’t, depending on what the law required. Since the Supreme Court had held that Wal-Mart’s female employees could not sue collectively due to the lack of evidence that they were indeed all victims of the same policy, the judge presiding over the Tyson case noted that the Wal-Mart case is “largely inapplicable to and/or distinguishable from” the Tyson case.

Likewise, a federal district court in Pennsylvania also found the Dukes case inapplicable to a wage and hour case in July of this year. When courier company American Eagle Express, Inc. asked the presiding federal judge to reconsider, in light of the Dukes case, his initial certification of a class of delivery drivers seeking unpaid overtime wages, the judge noted that the drivers had already shown that they were similarly situated enough to receive certification, and that this showing “is not affected” by the Supreme Court’s decision in the Dukes case.

The Dukes case stands for the proposition that in order for a class to be certified, there needs to be a certain “glue” (i.e., a common policy or practice) that binds the class members together. This legal principle is not new law, but rather has been U.S. Supreme Court precedent for decades. The Dukes case received a lot of press, primarily because of the large size of the class (1.6 Million members) and the fact that Wal-Mart is the nation’s largest employer. However, despite the disbanding of the class in Dukes, the above-mentioned cases, as well as others, reflect that it is still very possible for employees to use class/collective action lawsuits to obtain unpaid minimum wage and overtime compensation.

If you believe that you have been denied minimum wage or overtime pay, or if you want to better understand your rights, you should contact a competent St. Louis overtime attorney.