Lately, California employers have faced a flood of class-action lawsuits claiming they misclassified employees. Now that tide might turn, thanks to a ruling by the 9th Circuit Court of Appeals.
The court ruled that, although employers have the burden of proving at trial that they properly classified employees as exempt, at the beginning of a collective action, the burden actually falls on the employee making the allegations.
Recent case: Michael Marlo worked for UPS as a hub supervisor, preload supervisor and on-road supervisor—all jobs that UPS lumped together under the category “full-time supervisor” and classified across the board as exempt positions.
Marlo regularly worked more than 40 hours per week and didn’t get meal breaks, rest periods or overtime pay.
He sued and sought to represent all other full-time supervisors, alleging they had all been misclassified.
Marlo argued that under California’s Wage Order No. 9, which covers the transportation industry, it’s up to the employer to prove it properly classified employees. Therefore, he argued, he could start a collective-action suit representing all full-time UPS supervisors.
The court disagreed. It said there’s a difference between requiring an employer to show it classified employees correctly at trial and allowing a collective action. At the certification stage, the employee must prove that the employees he wants to represent were misclassified. He has to come forward with more than his own story. He has to show that others have similar stories. The court refused to certify the collective action. (Marlo, et al., v. United Parcel Service, No. 09-56196, 9th Cir., 2011)
Final note: Be ready to show why you classified an employee as exempt. Look at the overall job descriptions for the job category, but make sure you based each particular employee’s classification on specific job duties.