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How to Avoid Rule 23 'Commonality' in Class Action Employment Litigation

By Thomas M. Beck and Nicholas J. Sanservino, Jr.

In many class action cases, plaintiffs seek to certify a class encompassing thousands of employees across multiple facilities and job titles. Fortunately for employers, before such a broad class can be certified, Rule 23 of the Federal Rules of Civil Procedure requires plaintiffs to establish, among other things, that there are common questions of law or fact among the proposed class members (the “commonality test”).

One way employers seek to defeat class certification is by claiming that their employment decisions are decentralized and left largely (if not entirely) to the discretion of local management, thereby precluding the kind of commonality among putative class members that is necessary under Rule 23. However, some courts have certified broad classes spanning multiple facilities and job titles notwithstanding the presence of decentralized decision-making. These courts have held that, in decentralizing the decision-making process, the employer permits local managers to rely on overly subjective decision-making criteria, which results in discriminatory employment actions. In other words, ironically, the absence of centralized decision-making is treated as a factor that unifies the claims of the class members.

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