Litigation: Clearing the commonality hurdle

Examining wage & hour dispute class actions post-Dukes

Scores of wage-and-hour class and collective actions have been filed over the past few years seeking unpaid wages allegedly due under state labor laws and the federal Fair Labor Standards Act (FLSA). These suits have been initiated by various types of employees including pharmaceutical sales representatives, telecommunications managerial employees, retail non-managerial employees, hospital employees, inside sales consultants, manufacturing employees and real estate agents. Nearly 1.5 million employees had their hopes for a class action employment discrimination lawsuit dampened by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Could Dukes dampen the hopes of employees seeking to bring these wage-and-hour disputes as well? 

Many of the claims in these pending actions have been brought under the FLSA alone or in conjunction with state claims. Claims under the FLSA may be brought as a collective action, which is distinct from a class action under Federal Rule of Civil Procedure 23. Some lower courts have indicated that this distinction may limit the applicability of Dukes to FLSA collective actions. See e.g., Troy v. Kehe Food Distributors, Inc., --- F.R.D. ---, 2011 WL 4480172 at *8 (W.D. Wash. Sept. 26, 2011) (not convinced that Dukes precludes certification of collective action as “courts have made clear that the FLSA's “similarly situated” requirement is less demanding than the Rule 23 commonality requirement that was at issue in Dukes.”). 

In Wong, the proposed class was “All Retail Sales Managers in California who work[ed] for AT&T Mobility Services, LLC at any time from October 19, 2006 until the present” who were seeking, among other things, overtime wages and meal and rest break wages. Wong, No. 2:10-cv-08869 at 1. The Wong court found the same defect that existed in Dukes, stating:

Whereas the “crucial question” in [Dukes] was “Why was I disfavored?,” here the crucial questions are “Am I (or was I) exempt or non-exempt?” and (under the majority view) “Were meals and rest breaks made available to me?”


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Anthony Lathrop

Anthony T. Lathrop is a member of Moore & Van Allen PLLC, in Charlotte, N.C., and can be reached at 704-331-3596 or

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