Metropolitan News-Enterprise


Friday, November 9, 2012


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C.A. Upholds Class Action Denial in Suit Against Retailer




A suit by former employees of fashion retailer Wet Seal, who claim they were illegally required to buy the company’s products in order to work there, and to drive their own vehicles for work purposes without mileage reimbursement, was properly denied class certification, the First District Court of Appeal has ruled.

Div. Two Wednesday certified for publication an Oct. 12 opinion by Justice Paul Haerle. The panel held that San Francisco Superior Court Judge John Munter did not abuse his discretion when he concluded that there were too many individual liability issues to allow the case to proceed as a class action.

The plaintiffs filed suit in September 2008, targeting the dress code imposed by the company. While the policy, as revised in 2005, expressly stated that “[e]mployees are not required to wear the Company’s clothing,” a previous version contained the same language, but also required workers to exemplify the fashionable image “we want to portray,” to “reflect Wet Seal style during working hours,” and to wear “clothing consistent with Wet Seal’s brand,” if they did not have Wet Seal clothing.

Putative Class

The putative class would have consisted of about 12,000 persons who had worked at 74 Wet Seal and Arden B. stores in California during the four years leading up to the filing of the complaint. The plaintiffs claimed that the policy, and the way it was implemented by management, violated Labor Code provisions and administrative regulations by requiring employees to bear necessary work-related expenses, to patronize their employer without compensation, and to wear apparel and accessories of a distinctive design or color that were not furnished or paid for by the employer.

The plaintiffs separately claimed that many employees were forced to drive from one store to another to attend meetings or perform other work and were not reimbursed for mileage.

Munter concluded that the dress code claim was not appropriate for class certification because many employees had submitted declarations saying that they were not required to wear Wet Seal clothing at work, and many supervisors said that they did not require employees to purchase or wear the company’s products. That evidence, together with the lack of a written policy incorporating the alleged requirement that employees spend their own money to acquire the company’s merchandise, made individual issues predominant, the judge said.

He also declined to certify a class with respect to the travel reimbursement claim, noting that the company’s written policies expressly provided for reimbursement, that the company issued a standard form for employees to claim recompense, and that many employees said in declarations that they had not incurred any work-related expenses for which they were not reimbursed.

Trial Court Affirmed

Haerle, writing for the Court of Appeal, said the law and the evidence supported the trial judge’s position. There were, he said, “numerous flaws in the plaintiffs’ theory that Wet Seal’s written dress code policy provides a common class-wide common method of proving liability.”

If, as several dozen employees claimed in their declarations, those workers were compelled to purchase Wet Seal merchandise, contrary to the written policy, that does not make the claim appropriate for class certification, the justice wrote. The trial judge, he said, “did not hold or intimate that this evidence precludes plaintiffs from proving their individual claims against Wet Seal.”

The travel reimbursement claim, the justice similarly wrote, is not amenable to class treatment because the plaintiffs’ own evidence contradicts their claim that there was a company-wide practice of not paying reimbursement.

“For example…some of the employees who submitted declarations on behalf of the plaintiffs stated that they had been reimbursed for mileage, while others had not,” Haerle wrote. “Moreover, Wet Seal produced evidence that over 100 putative class members were reimbursed for mileage, gas, bus fare, travel meals and various other expenses incurred in connection with their jobs.”

The case is Morgan v. Wet Seal, Inc., 12 S.O.S. 5755.


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