Commentators have quipped that class certification is so easy in California that with little effort a group of plaintiffs could certify a ham sandwich. In fact, there has been a proliferation of recent California appellate decisions hinging class certification on the mere existence of an employer’s uniform policy—no matter how facially lawful that policy may be or how diverse its application is to the putative class at issue. But the law may be changing. In May, the California Supreme Court issued its long-awaited decision in Duran v. U.S. Bank Nat’l Ass’n, which sets forth the degree of rigorous analysis in which trial courts must engage before certifying a class action. Importantly, Duran confirms that plaintiffs need more than the mere existence of a uniform policy to support their effort to certify a class.

Duran involves a group of loan officers for U.S. Bank who allege that they were misclassified as overtime-exempt pursuant to the outside sales exception, which applies to employees who spend more than 50 percent of their workday engaged in sales activities outside their home office. Plaintiffs argued that the common issue for certification purposes was the fact that U.S. Bank had a common policy that classified its loan officers as exempt and used a common job description. Rejecting this argument, the state’s Supreme Court confirmed that plaintiffs need more: “In wage and hour cases where a party seeks class certification based on allegations that the employer consistently imposed a uniform policy or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class setting.”

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