Tristar’s normal work schedule for claims examiners required them to work 7.5 hours per day, but Tristar also offered several alternative work schedules that allowed claims examiners to work 8.33 or 8.5 hours per day in exchange for receiving every other Monday or Friday off. Most claims examiners elected to work under one of Tristar’s alternative work schedules.

In February 2014, two former examiners filed this putative class action against Tristar alleging it misclassified them and other similarly situated claims examiners as exempt from California’s overtime laws. According to Plaintiffs, Tristar required its claims examiners to work more than eight hours a day and 40 hours per workweek, but paid no overtime based on the exempt classification it applied to its claims examiners.

In November 2014, Plaintiffs filed a motion to certify a class composed of all individuals who are or previously were employed by Tristar as Claims Examiner[s] II and Claims Examiner[s] III in Tristar’s] Workers’ Compensation Division between February 25, 2010 and December 31, 2014.

The trial court denied Plaintiffs’ motion because it found they failed to present substantial evidence establishing their claims were typical of the class or that common issues of law or fact predominated on Plaintiffs’ overtime claims. The court explained Plaintiffs failed to present any evidence of a generally applicable written or de facto policy that required claims examiners to work overtime.

The Court of Appeal affirmed the denial in the unpublished case of Kizar v Tristar Risk Management.

The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citations.] ‘In turn, the “community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.(Brinker, supra, 53 Cal.4th at p. 1021.) The party seeking class certification bears the “burden to support each of the above factors with a factual showing.”

To satisfy the commonality requirement for class certification, Plaintiffs were required to show their liability theory could be established on a classwide basis through common proof. Typically, in overtime claims, plaintiffs show this by presenting evidence of an employer policy or practice that generally required the class members to work overtime.

Plaintiffs presented no evidence of any such policy or practice.