How To Defeat Class Certification (Revisited)
Since our previous article regarding Tuesday Morning (July 23), California courts continue to acknowledge the difficulty in affording class treatment to overtime claims where there are significant differences among class members' experiences. The ultimate questions are: Is there commonality among the proposed class? And if not, does the lack of commonality among the proposed class make a class action an inferior way of trying the lawsuit? For retailers, showing a lack of commonality can be accomplished several ways, such as by showing that individual store sales volume, square footage, location, et al translate into the duties of store management varying from store to store.
Modern technology may aid this task by helping retailers focus on the individual store managers’ performance of their duties and responsibilities. Showing a store manager spends the majority of his time performing exempt duties is a challenge for retailers in California because of the transitory nature of the retail industry. In particular, though the assistant store manager may have job duties that would require him to spend the majority of his time performing exempt functions, the reality is that factors such as chronic absenteeism (including no calls no shows) mean that store management may often be required to unload trucks, restock shelves, work registers and recover the store.
Computer technology gives employers the opportunity to pinpoint the exempt status of store management. These computer based programs, often on line, can be accessed from the store’s computer. They tend to focus on asking store management on a monthly or quarterly basis whether they are spending the majority of their time performing exempt work. Logistical issues require that the program be relatively easy and efficient to operate. As such, several types of programs employ a check the box questionnaire as to the frequency of the various tasks performed (e.g. as to any such activity, the questionnaire might ask how frequently the activity is performed – “hourly”, “daily”, “weekly” – depending on the application of the law of the state at issue). For instance, in California, the focus must be on the daily determination of exempt status, so quarterly or even weekly determinations may have little application.
As another example, an on-line management survey may require store managers and assistant store managers to evaluate and quantify time spent on managerial versus non-managerial tasks. A key element to the success of any such survey is making the information available to regional and district managers so they store managers and assistant store managers who are not meeting the exempt requirements can be counseled. Of course, the challenge for regional and district management is how to coach and counsel store managers in a non punitive way so that they do not respond to the surveys in a way to assuage management – that is, answer the questions the way they think they want their supervisors to answer them.
This requires a careful balancing of the ease and practicality of the administration of the survey and the realities about conditioning people’s responses. A constructive, coaching environment will assist in the successful implementation of an on line system. The results of the survey can be a valuable weapon in the class certification battle.
