OPINION
{1} Defendants, Wal-Mart Stores, Inc. and Sam’s Club, bring this interlocutory appeal of an order certifying a class of former and current hourly employees of Defendants’ stores throughout New Mexico who claimed they worked off the clock without compensation or missed rest breaks. On appeal, Defendants contend that the district court applied the wrong legal standard in determining whether class certification should be granted. Relatedly, Defendants appear to argue that the district court abused its discretion in granting class certification. We conclude that the district court did not apply an incorrect legal standard in granting class certification. We do, however, agree with Defendants’ assertion that the district court did not correctly define the class and therefore modify the definitions accordingly. In all other respects, we affirm the district court.
BACKGROUND
{2} This class action is one of many similar actions throughout the country concerning Defendants’ corporate policies and practices, which are alleged to promote the maximization of profits through the minimization of labor costs, and which, according to Plaintiffs, “foster an environment where hourly employees work through agreed meal and rest breaks and work off-the-cloek without compensation.” See, e.g., Basco v. Wal-Mart Stores, Inc.,
{3} Below, the district court identified four factual scenarios presented by Plaintiffs giving rise to the putative class action against Defendants. In the first, Plaintiffs allege that Defendants failed to compensate employees for missed rest breaks and that Defendants forced employees to miss rest breaks. In the second, Plaintiffs claim that Defendants failed to compensate employees for missed meal breaks and that Defendants forced employees to miss meal breaks. In the third, Plaintiffs allege that Defendants failed to let night employees leave Defendants’ stores after finishing their shifts or otherwise clocking out and that Defendants encouraged night employees to continue to work after they had already clocked out. Lastly, Plaintiffs assert that Defendants required or encouraged employees to work off the clock without compensation.
{4} Plaintiffs assert that Defendants’ alleged wrongful practices can be proved using common proof. Defendants have uniform written corporate policies that apply to all hourly employees. According to Defendants’ policies, the number of breaks provided to each employee is dependant on the number of hours worked. For example, an employee who works less than three hours is not entitled to a break. An employee who works three to six hours is entitled to one fifteen-minute break. An employee who works more than six hours is entitled to two fifteen-minute breaks. Similarly, whether or not an employee is entitled to a meal break depends on the number of hours worked. Employees who work more than six consecutive hours are entitled to a thirty-minute meal period.
{5} Defendants’ policies further provide that supervisors and management may not ordinarily require employees to work during scheduled breaks and meal periods and that if an employee does work during a meal or rest break, he or she must be compensated and provided an additional meal or rest break. Defendants’ policies also provide that no employee should perform work off the clock without compensation. Plaintiffs allege that each hourly employee is made aware of Defendants’ policies during an orientation process.
{6} Defendants’ employees are issued identification badges that are swiped into time clocks at Defendants’ stores whenever employees begin or end their shifts. Employees also clock in and out for meal breaks, which are unpaid. Prior to February 2001, employees were required to clock in and out for rest breaks as well, but are no longer required to do so. Unlike meal breaks, rest breaks are paid.
{7} Defendants’ payroll records include “Time Clock Archive Reports” and “Time Clock Exception Reports.” The “Archive Reports” are generated by each of Defendants’ stores and are based on employees’ time-clock swipes. The report shows the hours worked each day by each hourly employee. The “Exception Reports” identify irregular patterns of time-clock swipes that deviate from Defendants’ policies regarding shift length and rest and meal breaks. The patterns are characterized in a number of different ways, including short shift, long shift, too many breaks, too few breaks, etc. In situations when an employee’s recorded time is inaccurate because the employee forgot to clock in or out or was otherwise unable to clock in or out of the time clock, the employee is supposed to submit a “Time Adjustment Request” form, which indicates what changes should be made to the employee’s recorded time. These changes are entered into the payroll records by a personnel manager.
{8} Plaintiffs argue that it is possible to rely on Defendants’ payroll reports and records to show that employees missed rest and meal breaks. According to Plaintiffs, statistical analysis will be employed to demonstrate the difference between earned and used breaks for all of the employees of Defendants in New Mexico. Plaintiffs also rely on an internal audit report prepared by Defendants in July 2000, which is known as the “Shipley Audit.” See Iliadis,
{9} In addition to missed rest and meal breaks, Plaintiffs assert that employees are required to work off the clock. According to Plaintiffs, employees working the night shift in Defendants’ stores are often unable to leave the stores at the end of their shift because opening the doors triggers an alarm. Some of these employees continue working after finishing their shift until a manager comes to deactivate the alarm and let the employees leave. Plaintiffs also assert that there are instances during other shifts where employees do work after their shifts and during meal breaks without compensation.
{10} Although it is not apparent whether Plaintiffs argued this below, Plaintiffs assert that off-the-clock work can be demonstrated by comparing employee time records with other records kept by Defendants, including those that monitor use of cash registers by employees or that otherwise indicate that a particular employee is performing work. Additionally, Plaintiffs contend that off-the-clock work by night shift employees can be proved by comparing alarm system records with employee clock-out times. When the doors are locked at night at Defendants’ stores, an alarm is activated. Unless it is an emergency, employees cannot leave the store at night until the doors are unlocked and the alarm is deactivated. Records are kept of when these store alarms are activated and deactivated. According to Plaintiffs, such records could be cross referenced with the time records of night employees at Defendants’ stores.
{11} Plaintiffs assert that Defendants operate in a highly-centralized fashion. Plaintiffs claim that Defendants utilize a pyramid-like management structure. This structure, according to Plaintiffs, allows senior management to dictate corporate directives to store managers. It also allows senior management to monitor compliance with corporate directives on a daily basis. As such, senior management is able to keep close tabs on labor costs and can exert pressure on store managers to keep labor costs down. Additionally, Plaintiffs allege that Defendants’ management bonus program creates disincentives for managers to enforce policies relating to rest and meal breaks and off-the-clock work by rewarding those managers who are able to keep labor costs down.
{12} Contrary to Plaintiffs’ assertions, Defendants maintain that their operations within New Mexico are decentralized. According to Defendants, each store is separately managed by salaried store managers and assistant managers. These managers have authority for daily decisions regarding staffing, scheduling, and payroll. Additionally, payroll and time records are maintained by each individual store. Each store is also responsible for its own hiring and for the orientation of newly hired employees. Moreover, stores themselves are divided into departments, which are managed by different department managers. Defendants maintain that the decentralized nature of their operations will make it difficult to establish that the corporate-wide policy alleged to exist by Plaintiffs was uniformly implemented in stores throughout New Mexico.
{13} According to Defendants, employees are responsible for clocking in and out of work and must alert management of any discrepancies between hours worked and hours compensated. Defendants maintain that employees may fail to record their time properly for a number of reasons, including forgetting to clock in or out, broken time clocks, no time clocks, or habitual failure to clock in or out. It is the employee’s responsibility on such occasions to fill out a “Time Adjustment Request” form with the necessary corrections to the employee’s hours worked.
{14} Defendants also assert that employees are expected to manage their own time, including taking breaks when proper. According to Defendants, there are a number of different reasons why an employee might not take a rest or meal break. Defendants maintain that such reasons are not necessarily tied to corporate-wide policies or procedures, but are instead individual to each employee.
{15} After a three-day evidentiary hearing and one day of argument by counsel, the district court granted Plaintiffs’ motion for class certification. The district court also concluded that Plaintiffs could proceed under Section 50 — 4—26(B)(2) of the Minimum Wage Act, which allows one or more employees to maintain an action for violations of the Act on behalf of other employees who are similarly situated. The district court detailed its ruling in a thirty-page order. In certifying the class, the district court rejected Plaintiffs’ proffered class definition and instead certified three different subclasses, one under Rule 1-023 NMRA and two under the Minimum Wage Act. One subclass deals with missed rest breaks, while the other two deal with situations where employees worked off the clock without compensation. The district court did not certify a class involving meal break claims, it did not certify a class of all Defendants’ employees, and it did not certify a Rule 1-023 class dealing with off-the-clock claims. Defendants subsequently filed a motion to permit interlocutory appeal.
{16} The district court granted Defendants’ motion to permit interlocutory appeal of the class certification and, in doing so, identified two issues for review: (1) whether the court applied the correct legal standard in determining that this case should be certified as a class action under Rule 1-023 and (2) whether the court applied the correct legal standard in determining that this ease should be certified as a collective action under Section 50-4-26(B). This Court subsequently granted Defendants’ application for interlocutory appeal.
STANDARD OF REVIEW
{17} We “review de novo the initial decision of whether the correct legal standard has been applied” by the district court in determining whether to certify a class. Brooks v. Norwest Corp.,
DISCUSSION
{18} Defendants raise three issues on appeal: (1) the district court applied a “novel and erroneous” legal standard in reviewing the evidence presented for class certification; (2) the district court misapplied New Mexico law in determining that Plaintiffs satisfied the elements of Rule 1-023; and (3) the district court erred as a matter of law in concluding that Plaintiffs are “similarly situated” to the employees they seek to represent in a collective action under Section 50-4-26(B)(2) of the Minimum Wage Act.
{19} As an initial matter, Plaintiffs argue that Defendants’ brief in chief raises issues not originally identified as issues by the district court when it granted Defendants’ motion to permit interlocutory appeal. Plaintiffs therefore assert that it is inappropriate for this Court to consider Defendants’ contention that the district court abused its discretion in granting class certification. Although we agree that Defendants appear to present an additional issue not specifically identified by the district court when it permitted Defendants to apply for interlocutory appeal, we do not perceive the additional issue to be wholly unrelated to the issues identified by the district court. We observe that when a “court misapprehends the law, the court abuses its discretion.” Smart v. Carpenter,
The district court’s approach in determining whether class certification was appropriate
{20} Initially, we note that because the federal rule is essentially identical to New Mexico’s Rule 1-023, “[w]e may look to federal law for guidance in determining the appropriate legal standards to apply under these rules.” Romero v. Philip Morris, Inc.,
In the Tenth Circuit, the allegations set forth in the Plaintiffs’ complaint are controlling at the class certification stage. Under the Tenth Circuit standard, this Court must accept Plaintiffs’ allegations and all exhibits, affidavits, documents and evidence presented which support a granting of certification. The Court must rigorously analyze all the factual evidence supporting Plaintiffs’ claims and only grant certification where all of the Rule 23 prerequisites have been completely satisfied. In addition, where Defendants present additional uncontested evidence which is material to the certification of Plaintiffs’ claim(s), then the Court is not prevented from considering such additional evidence as part of the requirement to rigorously analyze the facts and prerequisites for certification. Controverted or conflicting evidence presented by the Defendants, however, must not be considered against Plaintiffs in the certification analysis. Such an analysis would be an improper weighing of the evidence.
(Citations omitted.) Defendants contend that this standard is erroneous for two reasons. First, it allows the district court to accept as true all of Plaintiffs’ evidence, regardless of whether Defendants have presented evidence that disputes, refutes, or otherwise demonstrates that Plaintiffs’ evidence is not credible. Second, it allows the district court to ignore all of Defendants’ evidence unless such evidence is undisputed. Contrary to Defendants’ arguments, we do not believe that the district court’s description of the applicable standard was sufficiently erroneous to be reversible, because while it was inartfully stated, the district court actually applied the correct standard, as will be seen below.
{21} In determining whether class certification is appropriate, a district court must engage in a “rigorous analysis” to decide whether the requirements of Rule 1-023 are met. Romero,
{22} Although it is not appropriate to examine the merits of Plaintiffs’ claims at the certification stage, the district court should not simply presume that the requirements of Rule 1-023 are met. Romero,
{23} As recognized by Plaintiffs, the rigorous analysis required of the district court involves a close and careful examination of whether the requirements of Rule 1-023 are met and does not involve an examination of the actual merits of Plaintiffs’ claims. See Brooks,
{24} Although we do not believe that the district court necessarily misstated the applicable standard for determining whether class certification is appropriate, we are concerned enough about the articulation of the standard that we review the court’s determination that class certification was appropriate to decide whether the court actually applied the correct legal standard. As we shall discuss later in the opinion, the district court’s written opinion granting class certification indicates that the court did carefully consider the evidence proffered by Defendants in support of their assertion that class certification was inappropriate. Thus, we cannot say that any possible misarticulation of the proper standard in one paragraph of the district court’s thirty-page opinion warrants a reversal of the certification. Of course, if the district court believes that we have misunderstood and that Defendants are correct in their analysis of the district court’s opinion, the district court is free to, and should, decertify the class.
Class action certification under Rule 1-023
{25} Class certification is appropriate under Rule 1-023 when “all four prerequisites of Rule 1-023(A) and at least one of the requirements of Rule 1-023(B) are met.” Brooks,
{26} Rule 1-023(A) lists four prerequisites for class certification:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Id. ¶ 11. The district court is also required to find that the requirements of Rule 1-023(B)(1), (2), or (3) are met. See Salcido v. Farmers Ins. Exch.,
{27} On appeal, Defendants argue that the district court erred as a matter of law in concluding that the typicality prerequisite in Rule 1-023(A) was established by Plaintiffs. Defendants further assert that individual questions of fact or law predominate and that a class action is not a superior manner in which to try the issues raised in the present case. Thus, according to Defendants, the district court also erred in concluding that Rule 1-023(B)(3) was met. Finally, Defendants argue that the district court’s subclass definitions are legally erroneous. We conclude that the district court did not apply an incorrect legal standard or otherwise abuse its discretion in deciding to grant Plaintiffs’ motion for class certification. We do, however, modify the subclass definitions created by the court.
a. Typicality
{28} “The typicality requirement of Rule 1-023(A)(3) is used to gauge in general how well the proposed class representative’s case matches the class factual allegations and legal theories.” Berry,
{29} In the present case, the district court concluded that the typicality prerequisite was met because the “interests and legal theories being pursued by the named Plaintiffs appear to be clearly aligned with those of the representative class members.” One of the named Plaintiffs, Gilbert Armijo, was an hourly employee who missed rest breaks during his tenure as an employee in the tire and lube division of Defendants’ Española Wal-Mart. The second named Plaintiff, Maria Casaus, was an hourly employee who worked nights as a forklift driver at Defendants’ Farmington Sam’s Club store. She claims that she missed rest breaks and that she also worked off the clock on numerous occasions.
{30} In determining whether the typicality requirement was met, the district court acknowledged Defendants’ assertions that the named Plaintiffs’ work environments were unique and that some of their claims may have factual differences. The court noted, however, that such differences did not change the fact that the basic factual elements of the named Plaintiffs’ claims were similar to that of the rest of the class. The court further stated that any of the alleged individual variations between “subclass members] would not prevent the named Plaintiffs from advancing the common claims and interests of the subclass members.” We agree with the district court that these factual variations do not render the named Plaintiffs’ claims atypical of the class.
{31} Although the named Plaintiffs’ positions and job duties differ from one another and from other members of the class, we fail to see how these differences make the named Plaintiffs’ claims with respect to missing rest breaks and working off the clock “significantly different from the claims and defenses of any class members.” Salcido,
b. Predominance
{32} If the district court determines that the four prerequisites to a class action described in Rule 1-023(A) are met, it must then determine whether “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Rule 1-023(B)(3). This is known as the predominance requirement. Romero,
{33} In the present ease, although the district court recognized that some individual issues raised by Defendants may later prove problematic, it nonetheless concluded that Plaintiffs had adequately satisfied the predominance requirement of Rule 1-023(B)(3). We observe, however, that “[although the district court identified some of the crucial liability issues that would require individual determinations, it did not identify Plaintiffs’ required proof or how the individual issues related to that proof.” Brooks,
{34} Plaintiffs’ claims under the subclass certified under Rule 1-023 include breach of contract and unjust enrichment. In order to prove breach of contract, Plaintiffs will be required to prove that (1) Defendants were contractually obligated to provide rest breaks for their employees; (2) a missed rest break constitutes breach of that contract; and (3) the breach resulted in damages to the employees. See Brooks,
{35} We disagree with Defendants’ assertions that the determination of whether a contract exists will necessarily involve individualized inquiries of each class member. We note that it is not readily apparent from the record whether Plaintiffs rely on the employee handbook as evidence of a contract or whether representations made during orientation sessions constitute the basis for the contract claim or both. As previously discussed, Plaintiffs assert (and Defendants apparently do not dispute) that the written handbook is applicable to all hourly employees. Whether or not the handbook can actually be considered a contract will be a question common to the class. See id. (“[The] [plaintiffs allege that all four elements of such a contractual obligation are present: (1) the terms are written and definite in form; (2) the terms were communicated to WalMart’s employees; (3) the offer was accepted by the employees; and (4) consideration was given by the employees by continuing to work for the company.”).
{36} We recognize that alleged oral representations may present a different problem at trial. We observe, however, that Plaintiffs allege that the handbook policies are conveyed to newly hired employees at orientation sessions. To the extent that these orientation sessions are uniform in the sense that the same general information is conveyed to all employees regardless of the store, it may be possible for Plaintiffs to demonstrate , the existence of an oral contract by common proof. See Rainbow Group, Ltd. v. Johnson,
{37} Moving on to the second element of Plaintiffs’ breach of contract claim, we believe that the question of whether a missed break constitutes a breach of contract is also an issue common to the class. See Vignaroli v. Blue Cross of Iowa,
{38} We likewise conclude that common issues predominate Plaintiffs’ unjust enrichment claim. See Braun,
{39} Additionally, although Defendants assert that they may have affirmative defenses against individual class members, we do not believe that this is reason enough to require the district court to deny class certification. See Berry,
{40} We further observe that the district court’s order granting class certification indicates that the district court was aware of the individual issues raised by Defendants. Indeed, the court identified eight different factual issues raised by Defendants in support of their argument that individual questions predominated over any questions common to members of the class:
1) the factual hiring procedure and basis for the formation of any employment contract; 2) the employee’s reasons for missed breaks or staying locked inside a specific store during night shifts; 3) the varied amount of any damages suffered by each employee claiming harm; 4) the variety of defenses available to Defendants based upon the facts of each event establishing a compensable claim; 5) the knowledge or consent of different managers to any improper computerized payroll activity and other alleged activities occurring in each store; 6) the various types of pressure or persuasion used by different managers to cause employee(s) to miss a rest break or work “off the clock”; 7) the reasons an employee failed to mitigate any damages by addressing the claim(s) directly with Defendants under the existing policies or procedures; and 8) the inability to cross-examine witnesses where actions or decisions rely upon individual factual issues.
The court expressed concern about some of these issues, particularly damage calculations, but nonetheless determined that common issues predominated. The court noted that the overarching issue in the present case was whether Defendants implemented policies and procedures that resulted in Plaintiffs being forced or coerced to miss breaks and/or work off the clock. With respect to the damages issue, the court recognized that it has various judicial methods to deal with damages without denying class certification on liability issues. The district court concluded that to the extent that the issues raised by Defendants actually present individual questions and these questions ultimately predominate over common questions, the court may decide to decertify the class.
{41} We remain unconvinced that the district court applied an incorrect legal standard or otherwise abused its discretion in concluding that predominance was met under Rule 1-023(B)(3). We observe that the district court did consider Defendants’ evidence regarding individual issues, but was simply not persuaded that such issues would predominate. Moreover, the court recognized that should individual issues with respect to damages pose a problem, it has methods to deal with such a problem. Such methods include:
(1) bifurcating liability and damage trials with the same or different juries; (2) appointing a magistrate judge or special master to preside over individual damages proceedings; (3) decertifying the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; (4) creating subclasses; or (5) altering or amending the class.
In re Visa Check/MasterMoney Antitrust Litig.,
{42} Finally, we recognize that while courts should engage in rigorous analysis in determining whether predominance is satisfied, “there is more than a kernel of truth in the view that in some complex cases ‘[decisions as to whether class action status should be allowed seem to rest, more than many other judicial determinations, on judicial philosophy, rather than on precedent or statutory language.’ ” Romero,
c. Superiority
{43} The second requirement of Rule 1 — 023(B)(3) is that the proposed “class action is superior to other available methods for the fair and efficient adjudication of the controversy.” This is known as the superiority requirement. See Romero,
(1) “the interest of members of the class in individually controlling the prosecution or defense of separate actions,” (2) “the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,” (3) “the desirability or undesirability of concentrating the litigation of the claims in the particular forum,” and (4) “the difficulties likely to be encountered in the management of a class action.”
Murken,
{44} In the present case, while not explicitly addressing each of the four factors described above, the district court concluded that the superiority requirement was met because judicial economy and resources would be preserved by allowing the suit to proceed as a class action. Defendants argue that the district court erred in concluding that superiority was established by Plaintiffs because individual issues will predominate and because individual actions brought by the Department of Labor or by individual employees are superior. We hold that the district court did not err as a matter of law or otherwise abuse its discretion in concluding that the superiority requirement was met.
{45} “Although the dismissal of a class action because of management difficulties is generally disfavored, dismissal is warranted where individual issues predominate to make the class action unmanageable, even if no alternative remedy exists.” Brooks,
{46} Additionally, we disagree with Defendants’ contention that individual actions or actions by the Department of Labor are superior to a class action. Although the Minimum Wage Act does allow for suits by individual employees or the Department of Labor for violations of its provisions, see § 50-4-26(A)(2), (B)(1), we observe that Plaintiffs’ claims under the Rule 1-023 certified subclass do not involve violations of the Minimum Wage Act, but are instead claims alleging breach of contract and unjust enrichment. Additionally, given the potential size of the class, we fail to see how individual actions would be superior to a class action. Finally, we note that Defendant does not argue that any of the other factors listed in Rule 1-023(B)(3) should serve as a bar to certifying the class. See Murken,
Collective actions under Section 50-4-26(B)(2) of the Minimum Wage Act
{47} The Minimum Wage Act “establishes a floor below which employers cannot pay employees wages and also requires the payment of time and a half for work in excess of a forty-hour workweek.” N.M. Dep’t of Labor v. Echostar Commc’ns Corp.,
{48} While there is little federal circuit law defining “similarly situated” for the purposes of a collective action under FLSA, “[flederal district courts have adopted or discussed at least three approaches” to the issue. Thiessen v. Gen. Elec. Capital Corp.,
{49} The second approach evaluates whether the putative collective action meets all of the requirements of a Rule 23 class action in order to determine whether the “similarly situated” requirement is met. Thiessen,
{50} While the Tenth Circuit has recognized that “there is little difference in the various approaches” — as all three involve consideration of similar factors and allow district courts discretion in deciding whether to allow a collective action to proceed-it nonetheless concluded that the ad hoc approach was the proper standard. Thiessen,
{51} In the present case, both parties apparently agree that the two-tiered approach is the correct approach in determining whether Plaintiffs are similarly situated under Section 50-4-26(B)(2). The parties disagree, however, on whether the evidence should be evaluated under the less stringent notice stage analysis or whether the case has progressed such that the stricter second stage analysis is appropriate. It is not readily apparent which approach the district court adopted in determining whether Plaintiffs are similarly situated for the purposes of a collective action under the Minimum Wage Act.
{52} Defendants argue that certification discovery is complete and the lawsuit has been going on for nearly six years, thus making the second stage analysis applicable. Under such an analysis, the court is required to take a hard look at whether Plaintiffs are actually similarly situated, utilizing the three factors discussed above. See Thiessen,
{53} Under the notice stage, Plaintiffs need only present substantial allegations that the “putative class members were together the victims of a single decision, policy, or plan.” Vaszlavik,
{54} Plaintiffs allege that Defendants’ corporate policies and procedures create an environment in which employees are forced or coerced to work through breaks and off the clock. In support of this assertion, Plaintiffs presented evidence of a corporate atmosphere in which managers are encouraged to keep labor costs down. As previously discussed, Plaintiffs have presented various methodologies in which they hope to demonstrate that missed breaks and off-the-elock work are widespread problems throughout Defendants’ stores. Deposition testimony from the class representatives support these general allegations. See Brown,
{55} Below, the district court acknowledged that Defendants had presented evidence to suggest that Plaintiffs were not similarly situated as Defendants had individual defenses to the claims. The court noted, however, that it was satisfied that Plaintiffs had presented enough evidence at this stage to allow the suit to proceed. It further stated that it planned to revisit the question of whether Plaintiffs were similarly situated at a later date. See Brown,
Subclass Definitions
{56} As a final matter, we note that Defendants have raised concerns about the district court’s definitions of the three subclasses. Below, the district court defined the three applicable subclasses as follows:
1. A subclass of all New Mexico store employees of the Defendants who are entitled to earned rest breaks during their shifts from September 19, 1994, to the present, and who failed to “clock out” of the Defendants’ computerized payroll system for any earned rest break(s) because of any action, policy or practice of the Defendants....
2. A subclass of all New Mexico store employees of the Defendants who worked the night shift from September 19,1994, to the present and who continued to work and/or were not allowed to immediately leave Defendants’ premises after having “clocked out” of the Defendants’ computerized payroll system because of any action, policy or practice of the Defendants____
3.A subclass of all New Mexico store employees of the Defendants who worked the day or evening shifts from September 19,1994, to the present and who continued to work off the clock after having “clocked out” of the Defendants’ computerized payroll system because of any action, policy or practice of the Defendants.
Defendants contend that these subclasses definitions are legally erroneous because the definitions (1) depend on the merits of the claims asserted, (2) rely on subjective criteria, (3) are overly broad, and (4) will fail to bind class members in the event of an adverse judgment. We agree that the subclass definitions are dependent on the merits of the claims asserted and therefore modify the definitions accordingly.
{57} “Whether a class definition is legally sufficient depends on the facts of each ease and must be determined on a case-by-case basis.” Brooks,
{58} We agree with Defendants that the phrase “because of any action, policy or practice of the Defendants” presents a merit-based question to determine subclass membership. In order to determine whether a putative class member satisfies this condition of class membership, the district court would have to decide whether Defendants’ policies or practices coerce or force individuals to either work off the clock or to miss breaks, a determination that turns on the central issue of liability in the present case. See Petty,
{59} In re Natural Gas Commodities Litigation,
{60} We also agree with Defendants’ contention that the district court erred in including the phrase “failed to clock out” in the subclass dealing with missed rest breaks. As Defendants point out, the practice of requiring employees to clock out for rest breaks was ended in February 2001. As such, we believe that the court should modify the subclass definition by deleting the phrase “failed to clock out” and simply define the class as including those employees who missed rest breaks during the applicable time period.
{61} Having modified the pertinent subclasses accordingly, we decline Defendants’ request to reverse the district court’s grant of class certification. Because Plaintiffs have not appealed the various aspects of the district court’s order granting class certification that they do not agree with, we decline to address such arguments on appeal. See Watkins v. Local Sch. Bd. of Los Alamos Schs.,
CONCLUSION
{62} We affirm the district court’s grant of Plaintiffs’ motion for class certification as modified.
{63} IT IS SO ORDERED.