We Thought It Might Be Getting Better … But Class Certification Is Still On the Rise

The explosion of wage and hour class action litigation in the last 10 to 15 years or so has shined a spotlight not only on wage and hour practices themselves, but also on the critical question of whether an employer's practices can and should support class certification. Class certification has accordingly become an issue of serious concern for employers; a lawsuit filed by one current or former employee over a relatively small wage amount can quickly multiply into a combined lawsuit of thousands — with significant amounts at issue — if the case gets certified as a class action.

Following some recent U.S. Supreme Court decisions, including a 2011 decision denying class certification  and directing courts to rigorously analyze whether there exist common questions that drive resolution of all class member claims (and not just common facts across the class members), a 2012 decision finding enforceable class waivers in arbitration agreements, and a recent California