©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 115 California wage and hour law differs from federal law in important ways, such that an employee who is exempt from federal overtime pay requirements often is not exempt under California law. California procedural rules facilitate class actions for violations of wage and hour obligations. Federal wage and hour claims, under the FLSA, require an “opt-in” procedure, meaning that collective actions proceed to the extent that employees want to join the suit.351 California procedural law, however, does not permit opt-in class actions,352 meaning that employees will belong to the class unless they affirmatively opt out. One Court of Appeal decision permitted plaintiffs to have the best of both worlds by alleging FLSA violations while proceeding with an opt-out-only theory of class certification that characterized the FLSA violations as violations of the California UCL.353 The Ninth Circuit has similarly approved a plaintiff’s tactic of using the UCL as a vehicle to assert a FLSA claim, without being bound by the FLSA’s procedural safeguards such as the requirement that employees must affirmatively opt into the case in order to participate.354 A California plaintiff denied class certification in state court is entitled to an immediate appeal under the “death knell” doctrine, while a plaintiff denied class certification in federal court has no right to appeal until a final judgment, unless the plaintiff can obtain permission to file a discretionary interlocutory appeal.355 California recognizes that plaintiffs’ lawyers have a constitutional right to communicate with potential class members, and requires employers to allow those lawyers to obtain the names and addresses of potential class members, notwithstanding their privacy interests.356 Virtually every Labor Code claim entitles the prevailing plaintiff to attorney fees.357 California has permitted wage and hour claims to proceed under its UCL, which has an extraordinarily long (four-year) statute of limitations.358 California courts show extraordinary deference to plaintiffs’ pleaded allegations. Federal courts require all plaintiffs, including wage and hour plaintiffs, to specify facts to support a plausible claim for relief.359 In California courts, it’s different. The Court of Appeal has stated that, “in the vast majority of wage and hour disputes, class suitability should not be determined on demurrer.”360 California courts, in considering class certification, are not required to use the “rigorous analysis” that the U.S. Supreme Court has required of federal courts.361 Thus, to defeat class certification, California employers often must bear the enormous expense of filing or defeating a motion based on extensive evidence regarding the suitability of the claim for class treatment. Wage and hour plaintiffs thus gain enormous leverage by seeking class treatment, which exponentially magnifies the employer’s potential exposure to monetary liability. A plaintiff seeking class certification need only identify a sufficiently numerous class that has a well-defined community of interest, a concept that embodies three factors: (1) predominant common questions of law or fact, (2) class representatives with claims typical of the class, and (3) class representatives who can adequately represent the class.362 Employers defending class actions often gather declarations from employees to show such things as variations in work experiences that show class certification would be inappropriate because individual issues would predominate over common issues. One employer, in opposing a motion for class certification, submitted 53 declarations from current and former employees who were putative class members. 363 Many declarants had been summoned, during working hours, to sign their declarations.364 When the plaintiff moved to strike all the declarations, alleging they had been obtained improperly,the trial court denied the motion and then denied class certification.365 Yet the Court of Appeal reversed, holding that the record failed to reflect that the trial court
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