Labor and Employment Law

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

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

By Kirby Wilcox

Kirby Wilcox is a partner in the Employment Law practice of Paul Hastings and is based in the firm’s San Francisco office. His practice involves all aspects of employment litigation and counseling for corporations.

Duran v. U.S. Bank National Association, 59 Cal. 4th 1 (2014), does not just change the rules for certification and trial of wage and hour class actions, it alters the playing field. First, it establishes new burdens for plaintiffs, and affirms existing due process rights for employers. Second, it expressly acknowledges that these new burdens and rights will increase the difficulty of certifying misclassification cases. Third, it implicitly repudiates the certification standard adopted in recent decisions from the courts of appeal that have granted certification or reversed denial of certification, by focusing almost exclusively on a plaintiff’s "theory of recovery," without probing the practicalities of litigating a case premised on a theory alone.

New Burdens for Plaintiffs and New Rights for Employers

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