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Liberal California Refuses to Certify Class of Retail Employees – Las Vegas Employment Law Attorney Andre Lagomarsino

Employees of the California clothing retailer, The West Seal, were dealt a major setback when a California Court of Appeal affirmed the trial court’s decision to not certify their class of retail employees. The plaintiffs had sought certification to represent approximately 12 thousand The Wet Seal employees in California. Morgan v. Wet Seal, Inc.

Several The Wet Seal employees sued their employer claiming the retailer forced them to purchase its clothing without any reimbursement. Under California Labor Law Code Section 450 no employer may compel or coerce any employee to patronize his or her employer in the purchase of anything of value.

In reviewing the evidence the appellate court focused in on the fact that The Wet Seal had no written, state-wide policy that required employees to make purchases from its stores. Additionally, though the plaintiffs had declarations from over 50 former employees, only some of them corroborated the plaintiffs’ claims. Other declarations were ambiguous. Furthermore, an email from a district director that supported the plaintiffs’ motion for class certification held no weight with the appellate court since it was ambiguous, there was no evidence that the district director was empowered to establish companywide policy, and the email was never distributed companywide.

Finally the appellate court noted that The Wet Seal submitted its own declarations from over 100 potential class members, The Wet Seal employees, who stated that they were never told to buy and wear West Seal clothing.

Because of the disparity among the plaintiffs’ and the defendant’s declarations, and the ambiguous email, the appellate court held that to determine any state-wide liability on the part of The Wet Sale would require individual inquiries of store managers and store employees. Specifically, it would have to be determined 1) what each store manager told each store’s employee about any such purchases, and 2) whether the employee purchased any Wet Seal clothing in reliance on any instruction. As such the individual questions needed predominated any common issue among a potential class.

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