Dukes v. Wal-Mart Does Not Preclude Class Action Certification for Restaurant Employees Seeking Withheld Wages

On November 16, 2011, in Espinoza v. 953 Associates LLC, U.S. District Judge Scheindlin issued an Opinion and Order certifying a class of “current and former employees of The Eatery restaurant”. Plaintiffs and the class allege that defendants, The Eatery and Whym restaurants failed to pay minimum wages, overtime and improperly withheld tips earned. In certifying the class, Judge Scheindlin distinguished the recent Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes.

In Dukes, approximately 1.5 million female employees sought class certification alleging wage and gender discrimination against Wal-Mart. The Supreme Court held that in order to satisfy the commonality requirement under Rule 23(a), the common claim among class members must be “capable of class wide resolution” of an issue “central to the validity of each one of the claims in one stroke.” The Court held that the commonality requirement could not be satisfied because plaintiffs’ claims would “require analyzing millions of subjective employment decisions” rather than specific policies or practices to which each claimant was subjected.

In distinguishing Dukes, Judge Scheindlin held that plaintiffs and class allege a common injury resulting from the implementation of the same policies and practices at The Eatery, thereby making it capable of class wide resolution. Judge Scheindlin also noted that any individualized questions in the action went to the differences in damages rather than determining the liability of Defendants, and therefore, common questions predominated over individual claims.

The heart of Judge Schiendlin’s decision is that the Court was satisfied by plaintiffs’ allegations that Defendants had specific policies and practices regarding lunch breaks and clock out times. Plaintiffs testified, and former Eatery manager Christopher Taub corroborated, that an hour-long “lunch break” was deducted from an employee’s paycheck each day they worked, although employees rarely took breaks longer than ten minutes. In addition, Taub testified that he was required to alter the number of hours worked by each employee in the computer system. The Court held that “[p]laintiffs have alleged a common injury that is capable of class-wide resolution without inquiry into multiple employment decisions applicable to individual class members” accordingly Dukes is distinguishable and does not preclude class certification for current and former employees of The Eatery.

Nonetheless, Judge Scheindlin refused to certify the class of employees who worked exclusively at Whym finding that plaintiffs failed to establish that that Whym exercised similar employment policies regarding lunch and clock out times.

Although the Court narrowed the definition of the class, the certification is a victory for plaintiffs. In reaching its decision, the Court noted the value of the class actions by explaining that class certification would “promote judicial economy by avoiding as many as 150 to 200 separate Labor Law actions”.

Veronica N. Valladares is a third year law student at New York Law School. She is a member of the Law Review and her activities include volunteering for the National Lawyers Guild Immigration Rights Project and being a student advocate at the law school’s Unemployment Action Center. Ms. Valladares is fluent in Spanish.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.