On November 8, 2010, the Ninth Circuit – in DeLodder v. Aerotek, Inc., Case No. 10-80178 (November 8, 2010) – agreed to hear a discretionary appeal of the denial of a class certification order in overtime litigation involving 700-plus Aerotek recruiters. Plaintiffs seek unpaid overtime and California Labor Code penalties for missed meal periods and rest breaks. Aerotek, a large staffing firm, classified its regular full-time recruiters exempt from overtime and California meal period and rest break rules under the white-collar administrative exemption. Judge Dolly Gee of the U.S. District Court for the Central District of California concluded that while Rule 23(a) requirements for numerosity, commonality, typicality, and adequate representation were met, certification under Rule 23(b) was not appropriate because of the necessarily highly individualized inquiry into the degree of independent judgment each recruiter exercised on the job. Discovery had showed substantial variations between locations, managers, and how individual recruiters worked. DeLodder v. Aerotek, Inc., Case No. 08-CV-6044 DMG (C.D. Cal Aug. 16, 2010), appeal granted, 9th Cir. Case No. 10-80178 (November 8, 2010). In 2002, Judge Richard Paez had certified a class of Aerotek recruiters (Johannes v. Aerotek, Case No. 2:98-CV-06153-DT (C.D. Cal. Sept. 16, 2002), but Judge Gee noted that both the job content of Aerotek’s recruiter positions and Ninth Circuit law had changed in the interim. Another decision from the U.S. District Court for the District of Maryland (another case in which DeLodder was a named plaintiff) denied certification of a nationwide class action against Aerotek encompassing recruiters and additional positions. Andrade v. Aerotek, 2009 WL 2757099, Case. No. 08-CV-2668 (D. Md. 2009). Judge Gee made it clear that her decision against class certification was based on evidence provided by both sides specific to work experiences of recruiters in California. She also relied on a trend of class certification rulings in recent Ninth Circuit decisions, including: In Re Well Fargo Home Mortg. Overtime Pay Litigation, 571 F. 3d 953 (9th Cir. 2009), Vinole v. Countrywide Home Loans, Inc. 571 F.3d 935 (9th Cir. 2009), and Dukes v. Wal-Mart Stores, Inc., 603 F. 3d 571 (9th Cir. 2010).
The Ninth Circuit appeal in Aerotek will be closely watched by class action practicioners for both sides. The case may impact the future of class-based litigation over exempt/nonexempt status, at least where qualification as exempt is a close call requiring fact-intensive inquiry.