About Us  |  About Cheetah®  |  Contact Us

‘Look’ again: Management emails are cornerstone of certification for Abercrombie dress code class

By Brandi O. Brown, J.D.

After a Supreme Court ruling against it and a settlement and dismissal of the company’s appeal in the Tenth Circuit on the refusal to hire claim of a Muslim employee who wore a religious headscarf, Abercrombie & Fitch’s legal “Look Policy” issues aren’t over. Abercrombie employees who alleged that they were compelled to make certain purchases of the retailer’s clothing items while employed, in order to comply with its “Look Policy” and internal sales demands, will move forward with multiple subclass claims against the company, a federal district court in California ruled. The workers alleged multiple violations of California labor laws based on the employer’s policy, including a minimum wage claim and a claim that its actions coerced them into patronizing its business. Central to the court’s commonality analysis were management emails emphasizing the importance of “pushing” or “driving” sales of the store’s clothing to its employees and tracking those sales. The employees’ class certification motion was granted and Abercrombie’s motion to strike was denied (Brown v. Abercrombie & Fitch Co., July 16, 2015, Bernal, J.).

“Look policy” and rest breaks. The employees, who filed the putative class action in 2013, set forth nine separate causes of action in their lawsuit, which covered multiple violations of the California Labor Code and the California Business and Professions Code. They also sought relief under the Private Attorney General Act. Specifically, they alleged that the overall class was comprised of approximately 62,000 non-exempt, hourly workers, from 2009 to the present. They sought certification of six subclasses, including Labor Code Section 450 subclasses (covering compelled patronization and minimum wage violations), a uniform subclass, a footwear subclass, and two rest break subclasses. They alleged that the employees were compelled to patronize the employer’s stores and purchase Abercrombie clothing and that they were also required to adhere to a “Look Policy” without reimbursement for the costs of the apparel.

After considering, and rejecting, the employer’s motion to strike several declarations filed by the putative class members in support of their class certification motion, the court considered the employees’ motion for class certification, concluding that certification of four of the subclasses was proper. Noting that the employees’ motion did not appear to seek certification of the broader class, instead focusing on the six subclasses, and that it had stayed litigation as to the rest break claims, the court considered only the employees’ motion with regard to the four other subclasses. It had little trouble concluding that the subclasses were sufficiently ascertainable and numerous.

Tracking and “pushing” sales. Likewise, the sometimes thorny issue of commonality did not present much of an obstacle for the employees. With regard to the minimum wage and Section 450 subclass based on coerced purchases, the theory underlying the subclasses was essentially that there was an unwritten policy not to follow the formal written policy of not requiring employees to purchase or wear the employer’s clothes. The employees asserted that Abercrombie engaged in such coercion in order to profit from the sale of the clothing items and to use the employees as “in-store models.” Although the retailer contended that there was no informal policy of coercion, the employees presented significant evidence to the contrary. Most importantly, they presented evidence of communications among management discussing the importance of “pushing” or “driving” sales of the season’s clothing line to employees. The employees presented emails discussing tracking of such sales and, when those sales had slumped, upper management’s plans to align managers with pushing such purchases. The employees also presented witness testimony supporting the idea that this was an issue considered by district and regional managers. Those managers reviewed the reports and used the numbers to measure success, an allegation supported by emails presented by the employees.

The employees also presented evidence in the form of the employer’s “Look Policy,” which dictated the type of clothing an employee might wear while working. While the policy did not require employees to wear clothing from Abercrombie’s stores, it did require the clothing to be “similar to the brand” and to reflect “what a customer would expect to see when they think about the brand.” Moreover, the employees presented evidence that new employee orientation required those employees to try on various items during a “Fit Session/ ‘AAA’ Purchase.” The range and type of evidence presented by the employees distinguished the case from other cases where class certification had been denied, the court explained, and it concluded that the employees satisfied the commonality requirement with regard to these subclasses.

Uniform and footwear subclasses. Likewise, the employees satisfied commonality with regard to the uniform and footwear subclasses. As to the uniform subclass, the employees alleged that Abercrombie violated California Labor Code Section 2802 and Wage Order 7 by requiring them to purchase what amounted to “uniforms” without indemnifying them for the costs. They argued that the “Look Policy,” constituted a uniform policy. The employees alleged that the footwear restrictions under the “Look Policy” also constituted a uniform or necessary expenditure. The footwear section had similar brand similarity requirements and limited the acceptable forms of footwear. These polices were applicable to all associates and both turned on a single written policy.

Typicality. The employees asserted that typicality was satisfied because the named plaintiffs were non-exempt, minimum-wage employees who worked in the employer’s California stores as sales associates and purchased the employer’s clothing. Although the employer contended that those employees were not typical, arguing that they failed to demonstrate that the pressure exerted on them was not unique, the court was not persuaded. As noted in its commonality discussion, the employees had asserted the existence of a common practice or informal policy. Likewise, the court rejected the employer’s argument that the named plaintiffs were not typical because they had never held 20 of the 22 non-exempt job positions included. The employer cited no authority that “such a high degree of representation” was required, the court explained. With regard to the employer’s argument that those with managerial positions were responsible for enforcement of the “Look Policy,” the court noted that store managers were not included in the first two subclasses. As for assistant managers, the court elected to exclude those managers from the definitions of the first two subclasses. However, those employees “need not be excluded” from the third and fourth subclasses, the court explained, because they were also subject to the same policy. Similarly, employees at Gilly Hicks and abercrombie kids stores were also subject to those policies.

Predominance under Rule 23(b)(3). Predominance was not an obstacle to certification either, the court concluded. Although the employer contended that individualized inquiries predominated, the court explained that the employees presented evidence of a company-wide policy or practice with regard to the Section 450 subclass. They set forth sufficient evidence of such a policy, including emails amongst upper-level management and declaration and deposition testimony. Even if there was variation as to how the policy was conveyed and even if some employees did not succumb to the pressure, “those facts do not necessarily defeat class certification.” The same was true with regard to the minimum wage subclass.

Under-inclusiveness not a problem. With regards to the uniform subclass, the employer focused on the fact that some employees never purchased Abercrombie clothes. However, that assertion evidenced a misunderstanding of the employees’ claim, the court explained. Although the employees limited the subclass to those who actually purchased such clothing and sought reimbursement, they “could potentially have sought damages for a wider category of purchases, including non-Abercrombie purchases” under Labor Code Section 2802 and Wage Order 7. Under those provisions, an employer may be required to reimburse employees for clothes purchased elsewhere. Certification of the class “is not rendered inappropriate just because Plaintiffs’ third subclass may be somewhat under-inclusive.” The same held true for the footwear subclass.

Noting that damages determinations are individual in almost all wage-and-hour class actions, the court was not persuaded that individuality of damages was a reason to deny certification. The employer did not challenge superiority or adequacy and the court, in fact, concluded that both requirements were met. Therefore, it granted certification with regard to the four clothing subclasses.