Labor and Employment Law

Ca. Labor & Emp't Rev. September 2014, Volume 28, No. 5

MCLE Self-Study: Duran v. U.S. Bank: Employee’s Perspective

By Steve Zieff

Steven Zieff is Of Counsel with Rudy, Exelrod, Zieff & Lowe, LLP, a San Francisco firm specializing in representing plaintiffs in employment disputes. Mr. Zieff developed the firm’s wage and hour practice and has been instrumental in pioneering the prosecution of wage and hour class actions. Mr. Zieff is a fellow of the College of Labor and Employment Law and is a recipient of the California Lawyer Attorney of the Year award.


Try as Big Business might to spin Duran v. U.S. Bank National Association1 (Duran) as substantially changing the case law and altering the playing field for overtime misclassification class actions, that is simply wrong. Duran reaffirms the continued availability of class actions to remedy overtime pay violations. Although the California Supreme Court overturned the trial court’s judgment because of "serious" flaws with the trial plan, the court took a measured approach in adhering to its precedents. The court repeatedly cited with approval and reaffirmed the holdings of Sav-On, Bell, and Brinker.2 Duran therefore supports the appropriate use of representative testimony and sampling and statistical evidence when it is reliable and based on sound analysis, so long as defendants are allowed a fair opportunity to litigate affirmative defenses.3 After Duran, trial courts’ certification determinations and decisions about whether statistical evidence may be used to prove classwide liability and/or damages will continue to depend on the facts of the case, the record developed, and the trial court’s exercise of its sound discretion.

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