Plaintiffs were newspaper workers who claimed they were made to work more than 8 hours a day and ?40 ?hours ?per? week; ?denied ?overtime ?and meal and rest breaks. ?The district court certified an FLSA collective action/state law class action and found in favor of the employees after a bench trial.?? In 2010 the Ninth Circuit affirmed but the Supreme Court remanded in light of Dukes.?? The panel reversed the 23(b)(2) certification and remanded to the district court to reconsider its analysis under Rule 23(a) and Rule 23(b)(3). ?The employer had never argued there was an issue with commonality but the panel ruled that Dukes represented an intervening changing in the law, allowing for the new argument.?? ?The panel recognized that the Wal-Mart was ?factually distinguishable.?
Importantly,? ?it? ?held? ?that? ?under?? 23(a)(2)?? the plaintiffs need not show every question in the case, or even a preponderance of questions, is capable of class-wide resolution.?? Indeed, a single common question would be sufficient.? As for Rule 23(b)(3), the court held that the employer?s uniform policy of classifying the plaintiffs as exempt was insufficient.???? ?The? ?panel? ?also? ?noted? ?that?? in California an employer need not ensure its employees actually take their meal breaks.? ?The employer must have known or should have known the employees? were working through their meal breaks.
Wang v. Chinese Daily News, Inc., 709 F.3d 829 (9th Cir. 3/4/2013) (W. Fletcher, Trott and Breyer (N.D. Cal.)).