Applebee’s workers to Second Circuit: the Supreme Court’s Comcast decision doesn’t undermine wage-and-hour class actions

Today Public Citizen filed the opening brief in an appeal on behalf of a putative class of Applebee's workers throughout New York State. The workers sued their employer, T.L. Cannon, owner and operator of 53 Applebee's locations in New York, claiming various wage violations, including that the employer trained its supervisors and managers to manipulate time records to reflect rest breaks that the employees didn't actually take (resulting, obviously, in underpayment of wages).

As we've discussed before, the main legal issue on appeal is whether the district court here erred when it held that the Supreme Court's March 2013 decision in Comcast v. Behrend forecloses certification of a damages class action where damages for each class member have to be calculated individually. As our brief explains, that has never been the law. Moreover, if the district court is affirmed, class action law would be profoundly altered and most wage-and-hour class actions would be in jeopardy, because in most wage cases damages are individualized: workers in the class rarely have worked the exact same hours.

The facts of this case show why issues common to the class predominate over the individualized question of damages: the plaintiffs allege, and have evidence from the mouths of defendants' own restaurant managers to show, that Cannon had a practice of requiring managers and supervisors to "shave time" off employee time records and that Cannon had a policy of not paying other wages required under state law.

So far three other courts of appeals (the Sixth, Seventh, and Ninth) have rejected the district court's position that Comcast forecloses class certification where damages must be measured individually. Let's hope the Second Circuit agrees.