August 16, 2018
Authored by: BCLP and Traci Choi
“Off the clock” work may prove costly, as retailers battle a flood of putative class actions based on claims that employees were not compensated for required work duties.
Recently, the parties in Samantha Jones v. Abercrombie & Fitch Trading Co. filed a joint motion seeking preliminary approval of a class action settlement for $9.6 million. The plaintiffs alleged that the retailer failed to compensate them for time employees spent calling in to the stores. California law requires employers to pay the equivalent of at least two hours of work to employees who report to work. Class counsel argued the employees effectively reported to work when the retailer required the employees to call ahead of their scheduled shifts.
Abercrombie argued employees had no private right to bring their claims for reporting pay time claims under either PAGA or the Unfair Competition Law. Abercrombie also disputed class certification, on the grounds the employees’ practice of calling in ahead of their scheduled shifts varied greatly from store to store.
The class includes 61,500 of the retailer’s former and current employees. If approved, each class member will recover approximately $130.
The proposed settlement comes as no surprise. Retailers such as Victoria’s Secret and Pier1 settled similar claims for over $12 million and $3 million, respectively, and have thereafter abandoned call-in practices.
The Ninth Circuit is currently considering whether to reject similar putative class claims in Herrera v. Zumiez, Inc. Abercrombie filed an amicus brief in support of Zumiez to bolster management’s argument that the employees were