unpublished opinion, the Second Circuit vacated the Southern
District of New York's order in Cuevas v. Citizen's
Financial Group certifying a Rule 23 class of assistant branch
managers (ABMs) who claimed they were misclassified as exempt.
The Second Circuit agreed with the company that in deciding the
plaintiff satisfied the commonality requirement under Rule 23(a),
the district court failed to resolve factual disputes regarding the
ABMs' duties. Although the plaintiff had submitted policy
documents and job descriptions that suggested the ABMs performed
primarily the same duties company-wide, many of the declarations
submitted to the district court from the ABMs, bank managers,
regional managers, and others suggested that the ABMs' primary
duties varied in material ways. The Second Circuit held that these
factual disputes must be resolved to determine whether the claims
in the case were capable of class-wide resolution, as required by
Dukes. The Second Circuit instructed the district court,
on remand, to conduct a more rigorous analysis to make this
For the same reasons, the Second Circuit agreed with the company
that the district court erred in concluding Rule 23(b)(3)'s
predominance requirement was satisfied. Again, the district court
relied on company-wide policies and the bank's classification
of all ABMs as exempt to determine that common issues predominated
over individual ones. Reiterating its prior holding in Myers v. Hertz Corporation, 624 F.3d 537,
548 (2010), the Second Circuit stated that determining whether
employees are exempt from overtime "should be resolved by
examining the employees' actual job characteristics and
duties." Thus, the Second Circuit concluded, it was essential
for the district court to examine all of the evidence before it and
resolve the disputed facts to determine whether the ABMs
"actually share primary duties such that common issues
predominate over individual ones."
In closing, the Second Circuit noted its decision should not be
read to hold certification is never appropriate in
misclassification cases. Rather, there must be a rigorous analysis
of the record, weighing and resolving conflicting evidence and
factual disputes, and a determination that the questions relating
to exemption classification can be resolved by evidence applicable
on a class-wide basis. Thus, in seeking to defeat class
certification in misclassification cases in the Second Circuit, as
elsewhere, employers should continue to focus on the material
factual disputes and differences in employees' actual job
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.