For several weeks now, attorneys and legal academics across the country have dissected the U.S. Supreme Court's Wal-Mart v. Dukes decision, which shut the door to a 1.5 million class of current and former female Wal-Mart employees who are claiming that they were denied pay increases and promotions because of their gender. In striking down class certification, the Supremes held that there was no commonality among the member of the class, that is, no "glue" that tied all of their discrimination claims together.

The Wal-Mart decision underscores the heavy burden plaintiffs have when pursuing a case on behalf of others in a class action. Surely, employers will use the Wal-Mart decision to fight class certification on the basis that the members of the proposed class lacks commonality. In a post-Wal-Mart era, plaintiffs seeking to advance a class action will be forced to narrow the scope of the class and focus on policies and practices that are specific and clearly establish a discriminatory effect on a class of individuals.

Might an employer's FMLA practices provide just what a plaintiff needs to withstand the scrutiny of the Supreme Court's exacting standards for class certification? Unlike many other statutes, the FMLA requires employers to adhere to a multitude of exacting rules, any one of which can trap an employer. If an employer's FMLA administration runs afoul of the FMLA, it could prove to be the "glue" that the Supreme Court insists is required to tie together the claims of an entire class. Whereas the Wal-Mart class was rejected because the plaintiffs pointed to rather amorphous, vague policies of discrimination as the basis for their class action, it seems that a class of plaintiffs may have an easier time attacking a specific FMLA policy or practice whose effect creates harm across an entire group of employees.