In recent years, wage-and-hour representative actions have increased dramatically in California and other states. Employees frequently pursue claims for misclassification as an exempt employee, unpaid overtime, and missed meal and rest periods through putative class actions. Not surprisingly, the focal point of much of this litigation is on the question of whether the action can properly proceed on a class basis based on California Code of Civil Procedure section 382 (i.e., whether common questions of law and fact predominate and whether the class is ascertainable). Given the mounting difficulties plaintiffs have had in obtaining class certification, however, plaintiffs and their attorneys have been feverishly searching for alternative avenues to pursue these claims without the burden of having to pass through the class certification gauntlet.

Arias v. Superior Court is an example of one such approach, which has now received a partial stamp of approval by the California Supreme Court. In Arias, the plaintiff sought to evade class certification requirements by pursuing wage-and-hour claims on behalf of a group of employees pursuant to two separate statutes: (1) the Private Attorneys General Act of 2004 (PAGA), Lab. Code § 2698 et seq.,and (2) California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200 et seq. The plaintiff did not attempt to plead either claim in a manner that would comply with Section 382 class action requirements.

Please see full update for more information.