In re Bank of America Wage & Hour Employment Litigation
286 F.R.D. 572
D. Kan.2012Background
- This multidistrict litigation consolidates wage-and-hour claims against Bank of America, N.A. and related entities for alleged off-the-clock work and related violations.
- Plaintiffs seek FLSA collective certification nationwide for non-exempt retail banking center employees (2006–present) and Rule 23 classes in California (2003–present) and Washington (2006–present).
- Bank maintains centralized timekeeping, labor budgets (FTE) and scheduling (Click2Staff) with scheduling discretion largely at branch level but constrained by budgets.
- Evidence includes ~620 plaintiff declarations, 33 former BCMs, multiple manager emails, an audit in 2009, and an expert analysis suggesting widespread off-the-clock work.
- Court concludes Shapiro’s off-the-clock data is unreliable for class-wide adjudication; numerous individualized inquiries are required.
- Court grants FLSA conditional certification for notice purposes but denies Rule 23 class certification and most state-law certification requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to certify a nationwide FLSA collective action for notice | Plaintiffs contend uniform off-the-clock policy exists nationwide. | Bank argues claims are too fact-specific and not nationwide. | Grant in part: conditionally certify for notice under §216(b). |
| Whether California class claims should be certified under Rule 23 | California plaintiffs seek certification for off-the-clock, meal/rest, wage statements, vacation, waiting time, PAGA, and UCL claims. | Claims are individualized; no predominating common questions. | Denied |
| Whether Washington class claims should be certified under Rule 23 | Washington plaintiffs seek class treatment for analogous wage-and-hour claims. | Predominance and commonality not present due to individualized issues. | Denied |
| Whether off-the-clock claims can be resolved on a class-wide basis | Dr. Shapiro data shows nationwide off-the-clock patterns. | Data is unreliable; liability varies by member; individualized inquiries required. | Denied |
| Whether meal/rest period claims can be resolved on a class-wide basis | Policy and scheduling cause missed meals/rests nationwide. | No reliable common proof; many individualized outcomes. | Denied |
Key Cases Cited
- Thiessen v. General Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001) (ad hoc two-step certification approach for §216(b))
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (Rule 23 predominance governs class action certification)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance standard is demanding; cohesion required)
- Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004 (Cal. 2012) (waiver and meal/rest break requirements inform class viability)
- Akaosugi v. Benihana Nat. Corp., 282 F.R.D. 241 (N.D. Cal. 2012) (vacation pay claims require common policy; many cases deny class treatment)
- In re AIG Sec. Lit., 689 F.3d 229 (2d Cir. 2012) (overarching issues sometimes predominate; common questions must be cohesive)