Labor & Employment Law Daily Wrap Up, WAGE HOUR—CLASS ACTIONS—Wis. Sup. Ct.: In reversing certification, appeals court erred in considering merits of guard’s claim for non-shift wages, (Jun 26, 2025)

By Marjorie Johnson, J.D.

“We clarify that a court should not consider the viability of the class’s claim on the merits when addressing commonality and typicality,” Wisconsin’s highest court stated.

In holding that a trial court improperly certified a class of prison guards in an action asserting the Wisconsin Department of Corrections (DOC) violated the state’s wage-and-hour law by failing to compensate officers for pre- and post-shift activities, an appeals court erred in considering the viability of the merits of the underlying claim, the Wisconsin Supreme Court ruled. Finding also that the trial court did not erroneously exercise its discretion in finding that the plaintiffs had met the requirements for class certification, the state’s high court reversed the appeals court decision and remanded the case to the trial court for further proceedings (McDaniel v. Wisconsin Department of Corrections, No. 2022AP1759 (Wis. Sup. Ct. June 24, 2025)).

Pre- and post-shift duties. The DOC employs approximately 5,000 corrections officers at 37 prisons and requires them to complete activities before and after they arrive at their post but does not compensate them for that time. Pre-shift activities include passing bags through X-ray machines, submitting to visual inspection, proceeding through the prison, and obtaining equipment. Post-shift activities include waiting to be relieved from their posts, providing shift-change briefing to incoming staff, proceeding out of the prison, and returning equipment. Though officers at every institution must complete pre- and post-shift activities, they do not all complete the same activities in the same order or take the same amount of time.

Lawsuit. A DOC officer brought this class action lawsuit seeking compensation for pre- and post-shift activities, which she claimed were “integral and indispensable” to the officers’ principal activities and thus compensable under Wisconsin law. She also presented evidence that while completing these activities, officers must remain vigilant and may need to respond to emergency situations.

Class certification. Granting class certification, the trial court determined that the officer made a “plausible” argument that officers were entitled to compensation for the pre- and post-shift activities and that the class met the requirements for class certification under Wisconsin law, focusing on the requirements of predominance and superiority since the other requirements were not in dispute.

Appeals court reverses. In concluding that the class was improperly certified, the appeals court focused on the “overlap” between the merits and the requirements of commonality and typicality. Reviewing whether the underlying claims “remain viable” under substantive law, the court determined that the officers’ pre- and post-shift activities “are not compensable,” and therefore the commonality and typicality requirements were not met.

Commonality and the merits. Under the commonality requirement, a class must show that there are questions of law or fact that are common to the class. Here, the parties’ disagreement about the nature of the court’s inquiry under the requirement presented a question of law, explained the Wisconsin Supreme Court. And after a careful analysis of U.S. Supreme Court precedent, the state’s high court held that “[w]hen a class-certification court assesses commonality, it should not consider the viability of the class’s claim on the merits.”

Meaning of “overlap.” The appeals court relied upon language in the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, where the Court explained that a “rigorous” class-certification analysis may involve “overlap” with the merits. However, “it does not follow that courts may analyze the viability of the merits claim,” the Wisconsin Supreme Court explained, particularly since in its subsequent decision, Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, the U.S. Supreme Court explicitly limited the “rigorous” analysis, stating that it “grants courts no license to engage in free-ranging merits inquiries at the certification stage.”

Thus, while there may be “overlap” insofar as a court may need to consider the underlying legal claims and evidence to determine whether a common legal question exists, it must mot weigh that evidence to determine whether the class will ultimately prevail on the merits, concluded the Wisconsin Supreme Court. As the U.S. Supreme Court said in Amgen, merits arguments are “properly addressed at trial or in a ruling on a summary-judgment motion,” not during class certification.

Class certification requirements. The Wisconsin Supreme Court further held that the trial court did not erroneously exercise its discretion in its assessment of the class-certification requirements, though two judges dissented in part on this issue and would have remanded back to the appeals court to perform that analysis in the first instance. First, the trial court reasonably concluded that the commonality factor was met since the officer presented a common question regarding compensability—whether the officers’ pre- and post-shift work was compensable. Though the DOC argued that the claim failed on the merits, “[w]hat matters here is that a common question exists, not what its answer is.” And while the DOC also argued that no common question existed because compensability for a given activity may vary from officer to officer, the state’s high court was unpersuaded.

The trial court also did not err on ruling that the typicality requirement was met because there was no dispute that the claims of the two class representatives arose from the same course of conduct as other class members and were based on the same legal theory. The court also reasonably concluded that the compensability issue was a common question that predominated over individual issues, including damages and the de minimis doctrine. Finally, the trial court was in the best position to understand whether it could handle the class action and its courtroom, and as such the Wisconsin Supreme Court gave deference to its decision that the class action was a more superior way to handle this controversy than individual wage claims.

The case is No. 2022AP1759.

Judge: Protasiewicz, J.

Attorneys: Timothy W. Burns (Burns Bair) for Nichole McDaniel. Karla Z. Keckhaver, Office of the Attorney General, for Wisconsin Department of Corrections.

Cases: ClassActions WageHour WorkingTime Procedure StateLawClaims WisconsinNews