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Seventh Circuit Decision Distinguishes Wage-and-Hour Class Action from Dukes Ross v. RBS Citizens

Since the Supreme Court’s decision in Walmart v. Dukes, the legal community has anticipated a widespread and profound impact on class action suits. In that case, the Court denied class certification to a group of female employees alleging sex discrimination in Walmart’s management hiring practices. The Court held the class failed to comply with FRCP 23’s “commonality” requirement (a class must have “common questions of law or fact”). For more information on the Dukes decision, see our earlier news brief.

In deciding Ross v. RBS Citizens, the Seventh Circuit became the first federal appeals court to apply Dukes to a wage-and-hour class action. In Ross, the plaintiffs were divided into two classes: hourly workers and assistant branch managers. Both classes alleged they were denied appropriate overtime pay. Charter One Bank, the defendant, argued that the plaintiffs’ classification “suffered from exactly the same lack of ‘glue’ that would ensure the common question . . . an answer that can be determined ‘in one stroke’ without considering facts particular to each plaintiff.” The Seventh Circuit panel squarely rejected this argument, and distinguished the Charter One Bank class from the class at issue in Dukes. The distinguishing characteristics included the fact that the Charter One plaintiffs did not need to demonstrate discriminatory intent, all of the plaintiffs lived in the same state, and the class as a whole was comprised of a relatively small number of individuals. Furthermore, the Court found that all of the class members had been subjected to an “unofficial policy” of Charter One, which led to denial of overtime pay. The Court said that the “unofficial policy” was the “common answer that potentially drives the resolution of this litigation.”

Although the Seventh Circuit is the first federal Court of Appeals to address the specific issue of how Dukes applies to wage-and-hour class action cases, sixteen district courts have held that Dukes does not preclude class certification in wage-and-hour cases, whileistrict courts have held that Dukes does preclude class certification. Although the law is continuing to evolve, and questions about the impact of Dukes still remain unsettled, the Ross decision indicates that class action suits are still viable in wage-and-hour disputes.