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Seventh Circuit Affirms Class Certification in Wage Claim – Ross v. RBS Citizens, NA

Employees of a bank with multiple branch locations throughout Illinois sued to recover unpaid overtime wages under both the federal Fair Labor Standard Act (FLSA) and the Illinois Minimum Wage Law (IMWL). After the district court certified two classes of plaintiffs, the defendant bank appealed the certification to the Seventh Circuit Court of Appeals. Based in part on a U.S. Supreme Court decision clarifying the requirements for class certification, the Seventh Circuit affirmed the district court’s order. Ross, et al v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012).

The plaintiffs alleged in their lawsuit that the bank had several “unofficial” policies that allowed it to deny overtime pay to employees, id. at 903, such as using “comp time” instead of overtime wages or altering employee timesheets. They also alleged that some assistant bank managers (ABMs), while officially exempt from eligibility for overtime pay, spent most of their time on non-exempt work. The plaintiffs therefore sought to certify two classes: non-exempt employees who were entitled to overtime compensation, and ABM employees who performed non-exempt work and were entitled to overtime pay. A class action requires four basic elements: “numerosity, commonality, typicality, and adequacy of representation.” Id.; Fed. R. Civ. P. 23(a). The district court certified both classes under Rule 23(b)(3) of the Federal Rules of Civil Procedure (FRCP), which applies to cases where the issues affecting all class members supersede those affecting individual members, and where a class action is the best way to resolve the conflict.


The bank appealed the certification order, asserting the narrow question of whether the order “define[d] the class and the class claims, issues, or defenses” as required by FRCP 23(c)(1)(B); and whether the plaintiffs had established “commonality” under FRCP 23(a)(2). The appellate court found that, while the certification order contained some ambiguity, it clearly held that the bank subjected “all current and former employees who have worked [for the defendant] within the last three years” to its unlawful overtime policies. Ross, 667 F.3d at 906. This, the court concluded, adequately established the identity of the class members. It found similar clarity in the order’s description of the class claims, noting that the bank’s objections were “merely issues of trial strategy or proof, rather than overall claims or issues necessitating resolution.” Id. at 907.

On the issue of commonality, the bank claimed that a Supreme Court ruling issued after oral argument in the appeal, Wal-Mart Stores, Inc. v. Dukes, et al, 131 S. Ct. 2541 (2011), overruled the district court’s findings. Dukes was a nationwide gender discrimination class action by more than one million female Wal-Mart employees. The Supreme Court reversed class certification, finding that the plaintiffs did not prove “that Wal-Mart operated under a general policy of discrimination.” Id. at 2553, quoted by Ross, 667 F. 3d at 908 (quotations omitted). The appellate court rejected the bank’s effort to compare the case to Dukes. While the Dukes class numbered over one million, the Ross classes had fewer than two thousand total members. All class members in Ross were in Illinois, not nationwide. Finally, the Title VII claims in Dukes required proof of discriminatory intent among thousands of Wal-Mart managers, while the IMWL claims in Ross only required proof of an unlawful overtime policy. Ross, 667 F.3d at 909.

The class action attorneys at DiTommaso♦Lubin represent current and former employees in wage and overtime hour claims. We practice throughout the greater Chicago area including Cook, DuPage, Kane, Lake, McHenry and Will Counties, and in the Mid-West region including Indiana, Wisconsin and Iowa. To schedule a confidential consultation to discuss your case, please contact us online, at (630) 333-0000, or at (877) 990-4990.

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Photo credit: By Dwight Burdette [CC BY 3.0], via Wikipedia.