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Litigating Wage and Hour Class Actions: Certification and Decertification

Continuing Lessons From Dukes, Comcast, and Duran to Evaluate Evidence on Liability and Damages

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, July 28, 2022

Recorded event now available

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This CLE course will help employment counsel to understand the processes and procedures established by Dukes, Comcast, and their progeny to successfully address the certification of wage and hour class actions, including strategies for arguing for or against commonality and predominance among the putative class.


Wage and hour class actions are significant workplace liability risks for employers. Settling or losing a wage and hour action can be expensive. And wage and hour class and collective actions have been rising in federal and state courts for years.

Dukes, Comcast, and other employer-friendly decisions may require plaintiffs to meet more stringent standards to obtain certification. Still, courts continue to grapple with the issues presented at this early and critical stage of litigation.

The evolving issues in employment class actions may affect class certification, including Section 216(b) collection action issues, PAGA and its effect on wage and hour actions and strategy in California, Daubert and related expert issues, and the Supreme Court's pro-arbitration stance juxtaposed against the antagonism of some leading state jurisdictions.

The California Supreme Court provided employers additional ammunition in Duran v. U.S. Bank Nat'l Ass’n by suggesting that misclassification actions may be particularly challenging to litigate on a class-wide basis under California's test for white collar exemptions. The decision criticized many elements of the trial court's certification of the misclassification action at issue. The U.S. Supreme Court in Tyson v. Bouaphakeo explained that representative evidence and statistical analyses can be permissible in class litigation, adding support to plaintiffs who rely on statistical sampling to establish class-wide liability. Courts following Tyson have held both ways--for and against representative sampling in class actions.

Counsel for employers must do more than cite these cases to defeat certification--they must parse the strategies and arguments from the rulings and shape them into a coherent and multi-pronged plan for defeating certification.

Listen as our authoritative panel of employment law attorneys discusses the critical lessons of Dukes, Comcast, Duran, Tyson, and other cases to educate counsel on how to approach motions for certification or decertification. The panel will discuss novel theories for challenging certification, tips for evaluating statistical sampling evidence, and strategies for winning decertification.



  1. Review and synthesis of Dukes, Comcast, Duran, Tyson, and their progeny
  2. Evaluating plaintiffs' liability and damages evidence supporting certification
  3. Assessing statistical sampling evidence offered to support liability
  4. Potential impact of distinctions among class members that impact both liability and damages
  5. Monitoring case manageability for opportunities to seek decertification


The panel will review these and other noteworthy issues:

  • What are the highest priority merits issues for defendants at the certification stage?
  • What evidence will refute an allegation of a standard policy or practice that violates wage and hour laws?
  • How can defense counsel make the most of expert witness testimony at certification?


Harrison, Ashley
Ashley N. Harrison

Shook Hardy & Bacon

Ms. Harrison’s practice focuses on representing businesses nationally in commercial disputes and employment...  |  Read More

Martucci, William
William C. Martucci

Partner; Chair, National Employment Litigation & Policy Practice Group
Shook Hardy & Bacon

Mr. Martucci practices nationally in business and employment litigation, with a focus on complex class action...  |  Read More

Webber, Christine
Christine E. Webber

Partner; Co-Chair the Civil Rights & Employment Practice Group
Cohen Milstein Sellers & Toll

Ms. Webber represents victims of discrimination and wage and hour violations in class and collective actions. She...  |  Read More

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