The Labor Lawyer

Littler's Allan King and Marlene Muraco discuss the circumstances of class actions filed under FLSA, and delve into the ramifications of the "missclassification" cases that are murkier than others. Overtime exemption is harder to define, and the question in these cases is "not whether the stated job description satisfies the statutory exemption, but whether the job as actually performed qualifies as exempt." This article is concerned with the cases in which the employees' exempt status turns on their actual job duties, which must be gleaned from evidence regarding their actual job performance, rather than from an employer's written job description or a stipulated set of duties and responsibilities. King and Muraco question whether "virtual representation" should be meaninfully applied to "class actions" when the class or collective consists of employees who share a job title, but differ in their actual performance of their job duties. King and Muraco review the facts of Sav-on Drug Stores, Inc. v. Superior Court, and the evidence that was before the trial court and critically consider the California Supreme Court's decision, and in particular whether, in cases in which the actual job duties and responsibilities are in dispute, the claims of absent class members can be tried "virtually" by the class representatives.

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