18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 49 the Court ruled that Plaintiff had identified two common questions that were likely to drive resolution of the litigation, including: (i) whether paid leave was a "right and benefit" that must be provided equally under § 4316(b) of the USERRA; and (ii) whether short-term military leave is comparable to jury duty, bereavement leave, or sick leave. Accordingly, the Court found that Plaintiff had met the commonality requirement of Rule 23(a)(2). The Court was also unpersuaded by Defendant’s arguments contesting typicality, as it determined that it was evident that the nature of Plaintiff’s claim was the same as any other class member because each class member had been denied payment for short-term military leave. Further, the Court rejected Defendant’s argument that typicality was not satisfied. As to the adequacy requirement, the Court rejected Defendant’s argument that Plaintiff lacked the requisite knowledge to represent other class members and determined that this requirement was also met. As to Rule 23(b)(3)’s requirement of predominance, the Court rejected each of Defendant’s three arguments against predominance, including: (i) a laches defense against certain class members; (ii) individual inquiries into each employee’s military service dates predominated; and (iii) Plaintiff had no damages model because he had testified that military leave records were flawed and inaccurate. In sum, the Court held that predominance was met because the common issues of whether paid leave was a "right and benefit" under § 4316(b), and whether short-term military leave was comparable to other forms of paid leave, could each be resolved on a class-wide basis. Finally, the Court determined that a class action was the superior method of adjudication because there were no manageability concerns and the cost of litigating to recover the brief periods of time for which an employee took short-term military leave were substantial issues relative to the potential individual relief. For these reasons, the Court granted Plaintiff’s motion for class certification. Riley, et al. v. SK United Corp., 2021 U.S. Dist. LEXIS 45183 (N.D. Cal. March 9, 2021). Plaintiffs, a group of job applicants from the United States, filed a class action alleging that Defendant, an Indian-based company with U.S. headquarters, gave preferential hiring treatment to foreign visa-holders over U.S. citizens in violation of Title VII of the Civil Rights Act. Plaintiffs moved for class certification, which the Court denied. Plaintiffs contended that during the hiring process Defendant screened local applicants through “culture fit interviews.” Id. at *3. According to Plaintiffs, “culture fit” was a pretext for screening out non-Indian local candidates. Id. Plaintiffs further alleged that Defendant employed a uniform, company-wide policy regarding how to prioritize candidates for open onsite positions, gave first consideration for open positions to visa-ready Indian candidates, and only considered local U.S.-based candidates if no visa-ready Indian candidates were available. The Court held that Plaintiffs satisfied numerosity under Rule 23(a)(1) since Plaintiffs alleged that the putative class would have roughly 43,000 members. Id. at *8. However, the Court opined that Plaintiffs failed to establish commonality under Rule 23(a)(2). Id. at *9. Citing Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 352 (2011), the Court explained that in the context of an employment discrimination class action, Plaintiffs seeking class certification involving a large number of individual employment decisions must establish “some glue holding the alleged reasons for all those decisions together” in order to satisfy the commonality requirement of Rule 23(a)(2). Id. at *9-10. The Court noted that there were several reasons Plaintiffs failed to meet the commonality requirement, including the fact that some positions were not filled by any candidate, some were required to be filled by a citizen or green card holder, that there were reasons that job candidates were not hired that were independent of Defendant’s alleged discriminatory hiring practices, that Defendant’s hiring processes was not the same across the board, and that the job positions were sufficiently varied. Id. at *11-15. The Court also determined that Plaintiffs failed to establish typicality under Rule 23(a)(3) because they did not establish that they were injured by the same conduct that allegedly injured other class members. Id. at *17. Accordingly, the Court held that Plaintiffs have failed to satisfy the requirements Rule 23(a)(3). The Court further concluded that Plaintiffs failed to establish predominance under Rule 23(b)(3). Id. at *18. The Court reasoned that the unique experiences of the two named Plaintiffs alone exemplified the need for individual inquiries, which would predominate over common questions of law or fact relative to the putative class. Id. at *18-19. The Court further noted that many putative class members were evaluated by an HCL client as part of the hiring process, and the candidate’s adverse employment decision might be attributable to a client’s feedback. As a result, the Court held that individual inquiries predominated over common questions of law or fact to the putative class. Id. at *19-20. For these reasons, the Court denied Plaintiffs’ motion for class certification. (x) Tenth Circuit No reported decisions.