By Lisa Milam-Perez, J.D. A district court properly certified class claims brought by domestic farmworkers who alleged that an employer failed to inform them of available work being performed by temporary foreign workers under the H-2A visa program and paid them less than those foreign workers in violation of the Agricultural Workers’ Protection Act and Washington law. A Ninth Circuit panel affirmed the decision to certify an "inaccurate information" class and an equal pay subclass, finding no abuse of discretion in the lower court’s determination that common questions existed as to the employer’s duty to disclose information about available work, that those common issues predominated, and that, as for the equal pay subclass, Rule 23(a)(4)’s commonality and typicality criteria were satisfied (Torres v. Mercer Canyons Inc., August 31, 2016, Smith, M., Jr.). H-2A jobs. The fruit and vegetable farm employer was given approval to temporarily employ up to 44 foreign workers under the H-2A program, at $12 an hour, to perform vineyard labor from March 24 through September 1, 2013. However, the clearance order required the employer to "positively" recruit domestic labor to reduce the number of foreign workers filling the 44 positions. To that end, the employer was to notify former vineyard workers who had worked in 2012 that there was available work, to inform job seekers of the terms and conditions of the jobs as submitted to the Department of Labor, and to hire any qualified domestic workers who applied. A pair of domestic farm workers contended that one of them went to the employer to inquire about work but was discouraged from applying; the employer insisted it wouldn’t hire local workers until after foreign workers arrived. There was nothing available, he was told, but if he wanted, he could leave his contact information and he would be called if needed. The other worker, who had worked as a vineyard laborer in 2012 and again in January through September of 2013 (at a rate of $9.88 per hour), said he was never informed of the available H-2A positions and that he was paid the lesser rate even for some work identified on the H-2A clearance order as paying the $12 rate. Class action. The workers brought a putative class action suit alleging violations of the AWPA, the Washington Consumer Protection Act (CPA), and Washington wage laws. Specifically, they asserted that the employer made false representations about the terms and conditions of employment (and engaged in unfair or deceptive trade practices, under state law) by failing to inform them of the $12-per-hour jobs; failed to pay them the $12-per-hour rate to which they were entitled for the qualifying H-2A work; and had an unlawful practice of withholding wages owed. After denying the employer’s motion for summary judgment, the district court certified a 600-member "inaccurate information" class and a 200-member equal pay subclass. On appeal, the employer challenged the lower court’s finding that there were common issues, that common issues predominated, and that the named plaintiffs’ claims were typical of the class. Commonality. In finding commonality, the district court identified two pertinent questions that would drive the resolution of the case—questions that went to the substantive merits, but which were relevant to whether Rule 23 requirements were satisfied: (1) whether the employer had a policy or practice of withholding information regarding available H-2A jobs from job seekers or current employees; and (2) whether that withholding amounted to giving false or misleading information about the existence of available jobs (and the terms and conditions of those jobs) under the under the AWPA and CPA. According to the employer, the court below had got the substantive law wrong, which led the court erroneously "to divine common issues." The appeals court didn’t have to decide the correctness of the lower court’s construction of the relevant statutory provisions; it was enough that whether that construction was correct raised a common legal question. Specifically, the employer insisted that H-2A jobs are not specifically referenced in the AWPA, so they did not have to be disclosed. "That argument is susceptible of classwide resolution," the appeals court said. Moreover, aside from the legal dispute, the key question of fact—whether the employer in fact had a policy of withholding the information, as alleged—would drive the resolution for all class members. Accordingly, Rule 23(a)(2) commonality was satisfied. Predominance. The employer argued that the district court erred as to the elements of a CPA claim under state law—that an injury was an element of liability under the statute, not just a component of damages. But the appeals court saw no misstep. The district court looked to the five elements of a CPA claim, concluded that the plaintiffs could satisfy at least the first three by proving common questions, and that any individualized questions that the employer might raise went to damages, not liability. Predominance is not "a matter of nose-counting," the appeals court said; more significant questions that are apt to drive the resolution of a dispute are given more weight in the predominance analysis, over individualized questions that are less significant to the class claims. In concluding that the presence of some individualized issues did not overwhelm an overall finding of predominance, the district court conformed to this principle. Moreover, whether the class members suffered an "injury" under the CPA wasn’t necessarily a wholly individualized question. The alleged injury was "informational"—the lack of notice about available H-2A work—resulting from the employer’s common policy of nondisclosure, the consequence of which they were deprived of the chance to pursue the positions. As a remedial statute, the CPA defines "injury" liberally: an injury inheres even if the actual monetary damage is minimal. It could be enough that, due to a lack of notice, the plaintiff spent time and resources looking for other work. Here, a reasonable factfinder could conclude the plaintiffs suffered an even greater loss: the opportunity to seek H-2A work at $12 an hour. The appeals court was not inclined to adopt the employer’s "unduly narrow" interpretation of "injury" as requiring an employee to actually show he was eligible for an H-2A job. No harm, no foul? The employer also argued that the class improperly included a subset of "non-injured" individuals who were "exposed to" but not "harmed by" the alleged nondisclosure policy—and that as a result, predominance was defeated. Specifically, it contended there were class members who weren’t even looking for work at the time, or wouldn’t have been hired anyway, so they wouldn’t have been better off had they been given the allegedly omitted information. The appeals court was not convinced. This reasoning may have been more persuasive if the class was populated with individuals who had never been exposed to the employer’s challenged conduct to begin with, but there was no such fatal flaw here. "[A]n injurious course of conduct may sometimes fail to cause injury to certain class members," the appeals court said. "Even a well-defined class may inevitably contain some individuals who have suffered no harm as a result of a defendant’s unlawful conduct." Consequently, the district court did not abuse its discretion in finding the alleged practice of nondisclosure "predominates over the exact interaction between individual job-seekers" and the defendant employer. Over-expansive? Also to no avail, the employer challenged the "inaccurate information" class as overbroad, in that it included all individuals who had potential damages claims under AWPA and the CPA. But again, this "potential flaw" was not fatal to certification. It merely reflected the presence of "contrasting litigation positions on the proper scope of liability, and a merits issue that the district court will later resolve concerning the breadth of [the employer’s] disclosure duty over time." The plaintiffs were not obligated at this time "to downsize their legal theory" from their assertion that the employer owed a disclosure duty toward all class member to a more narrow claim that the employer was obligated to notify "only those most likely to be interested" in an H-2A job. Separation into subclasses or an adjustment of the class definition may be warranted as the case progresses, if the court finds the class exceeds the scope of liability under AWPA or CPA. For now, though, the class as comprised aligns closely with the plaintiffs’ "theory of informational injury." Rule 23(b)(3) predominance is maintained. Equal pay subclass. The district court also certified a 200-member equal pay subclass of individuals who allegedly performed H-2A-covered work but were paid less than the $12 per hour rate. The appeals found no abuse its discretion in the lower court’s having found a common question of fact in whether the domestic workers were consistently paid $12 per hour for H-2A work. Nor was the appeals court convinced that individualized defenses would defeat Rule 23(b)(3) predominance. Finally, the appeals court agreed that typicality under Rule 23(a)(4) was satisfied here, deeming it irrelevant that the named plaintiffs were merely seasonal farm workers while the class was comprised of "seasonal and migrant farm workers," or that some of the workers were hired through a labor contractor while others were hired directly by the employer, or that the named plaintiffs were atypical in some other disqualifying way.
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