Class certification is vacated in shift work case

Where the class definition in an alleged failure to compensate employees for pre- and post-shift work activities case contained far too much variation to satisfy Federal Rules of Civil Procedure 23(a) and (b)(3), the 4th U.S. Circuit Court of Appeals has ruled the class certification must be vacated.

Thomas E. Overby Jr. and Abby Gearhart filed suit against brewing company Anheuser-Busch Cos. under the Virginia Wage Payment Act (VWPA), the Virginia Overtime Wage Act (VOWA) and the Fair Labor Standards Act (FLSA), alleging that the company failed to compensate employees for all mandatory pre- and post-shift work.

The district court granted the motion for class certification.

Anheuser-Busch appealed the order, and the 4th Circuit reversed.

“In defining the common question at too high a level, the district court failed to observe the myriad variations in employees’ circumstances,” Judge J. Harvie Wilkinson III wrote. “Indeed, because we find substantial variance in the tasks employees performed, when/where those tasks occurred, and the legal standards to which prospective class members are subject, we vacate the class-certification order and remand for further proceedings.”

Judges Julius N. Richardson and Nicole G. Berner joined the 18-page opinion in Overby, Jr. v. Anheuser-Busch, LLC (VLW 026-2-216).

Robert W. Tucci of Zipin, Amster & Greenberg in Silver Spring, Maryland, who represented the employees, did not respond to a request for comment.

Neither did Washington, D.C., attorney James E. Tysse of Akin Gump Strauss Hauer & Feld, who represented Anheuser-Busch.

Pre- and post-shift work Overby and Gearhart worked at Anheuser-Busch’s Williamsburg brewery, where employees work in five departments.

Anheuser-Busch pays employees only for scheduled shift hours and expects employees to be at their workstations immediately at the start of their shift and to continue working there until the shift concludes.

If employees need to work outside of shift hours, they must proactively notify their manager, who will ensure that they receive pay for any preapproved extra time.

While in industrial spaces, employees must wear various personal protective equipment (PPE), with some roles requiring additional PPE such as wetsuits and Kevlar gloves. Some employees don and doff pieces of PPE at home, while others don and doff PPE during shift hours, and some put on and remove it all in the company locker room outside of shift hours.

During the COVID-19 pandemic, Anheuser-Busch imposed more rigorous health and safety requirements, although those practices ceased in February 2022.

Overby and Gearhart alleged that employees were not being paid for pre- and post-shift work, including donning and doffing PPE, complying with COVID-19 protocols, partaking in shift handoff meetings and securing and putting away tools.

Not all workers performed the same categories of pre- and post-shift work.

Anheuser-Busch consented to the conditional certification of an FLSA collective action, and 71 brewery employees opted in. Overby and Gearhart then moved for class certification of their VWPA and VOWA claims, and Anheuser-Busch objected, cross-moving for decertification of the FLSA collective action.

The district court granted the plaintiffs’ motion, finding that the proposed class met the Rule 23(a) and (b)(3) requirements for numerosity, commonality, predominance, superiority, typicality and adequacy.

Anheuser-Busch appealed.

No classwide question

The district court committed a legal error when it found that the plaintiffs’ proposed class met Rule 23’s commonality and predominance requirements despite significant variation in prospective class members’ alleged pre- and post-shift work, the court said.

In addition, the district court ignored circuit precedent from 2024 in Stafford v. Bojangles’ Restaurants, Inc., where the federal appellate panel held that relying solely on overly generalized company policies will typically defeat class-action certification because these formulations too often disguise the dissimilarity of prospective class members.

Rule 23(a) commonality requires the presence of at least one question susceptible to “classwide resolution” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

“One can always frame a question in such an abstract manner as to elicit a common response,” the court wrote. “The present case illustrates this danger. On its face, resolution of the alleged common question would appear to determine liability across the entire class. But to do so, one must circularly assume that all class members in fact performed off-shift work and that Anheuser-Busch required the work to be performed off-shift. Thus, it is impossible to resolve this alleged common question without first answering a number of threshold inquiries: Did the employee don and doff PPE on Brewery premises outside of shift hours? Did the employee perform mandatory handoff or carryover meetings outside of shift hours? Did the employee work during the period in which
Anheuser-Busch mandated COVID-19 health policies? These questions have no common answer; they involve more particular engagement with the record and reveal significant variation amongst prospective class members.”

Class definition ‘sweeps too broad’

In the case at hand, three questions impeded the common resolution of liability, the court found: whether class members performed specific categories of mandatory pre- or post-shift work at all, where/when they performed that off-shift work, and what legal standards class members were subject to during the relevant employment periods.

Mini-trials would be required into the exact nature of individual employees’ off-shift work, and activities might not constitute compensable, company-mandated activities if performed off brewery premises, the court said.

In addition, different liability standards were possible for prospective class members, as the VOWA and VWPA saw substantial revisions in July 2022, the court pointed out. Some putative class members are subject to one pre-2022 legal standard, some are subject to the post-2022 standard and some who worked during both periods are subject to both standards.

Further, “the district court’s errors with regard to commonality and predominance are exacerbated by a class definition that sweeps too broad,” the court added.
“[T]he district court did not fit the class definition to plaintiffs’ factual claims. Instead, the class definition effectively encompasses all hourly employees at the Brewery, with no caveat whatsoever.”

On remand, the district court could endeavor to resolve the problems with the class definition — perhaps employing subclasses — or deny the motion for certification entirely, the court held, vacating the order and remanding.

Overby, Jr. v. Anheuser-Busch, LLC

ISSUE           Where the class definition in an alleged failure to compensate employees for pre- and post-shift work activities case contained far too much variation, should class certification be vacated?

Answer      Yes (4th U.S. Circuit Court of Appeals)

Attorneys  Robert W. Tucci, Zipin, Amster & Greenberg, Silver Spring, Md. (appellees) , James E. Tysse, Akin Gump Strauss Hauer & Feld, Washington, D.C. (appellant)

• Overby, Jr. v. Anheuser-Busch, LLC
• Stafford v. Bojangles’ Restaurants, Inc.