Duran

Concurring. — It is not difficult to understand why the trial court’s sampling plan in this case was “profoundly flawed.” (Maj. opn., ante, at p. 13.) The representative witness group was not selected at random but in a manner biased in plaintiffs’ favor. The trial court used no known statistical rationale in picking a sample size of 20, and there is no reason to think the sample was sufficiently large. The trial court also tolerated a margin of error at the damages phase that was undoubtedly too large. These errors require reversal of both the liability phase and restitution phase judgments.

At the same time, today’s opinion takes an appropriately cautious approach to guiding the conduct of class action trials in employee misclassification cases and, in particular, the use of statistical methods in such trials. The court disavows any “sweeping conclusion as to whether or when sampling should be available as a tool for proving liability in a class action,” while emphasizing that any trial plan involving statistical methods “must allow the defendant to litigate its affirmative defenses.” (Maj. opn., ante, at p. 40; see id. at p. 35 [“While representative testimony and sampling may…

We encounter here an exceedingly rare beast: a wage and hour class action that proceeded through trial to verdict. Loan officers for U.S. Bank National Association (USB) sued for unpaid overtime, claiming they had been misclassified as exempt employees under the outside salesperson exemption. (Lab. Code, § 1171.) This exemption applies to employees who spend more than 50 percent of the workday engaged in sales activities outside the office. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 [ 85 Cal.Rptr.2d 844 , 978 P.2d 2 ] (Ramirez).)

After certifying a class of 260 plaintiffs, the trial court devised a plan to determine the extent of USB’s liability to all class members by extrapolating from a random sample. In the first phase of trial, the court heard testimony about the work habits of 21 plaintiffs. USB was not permitted to introduce evidence about the work habits of any plaintiff outside this sample. Nevertheless, based on testimony from the small sample group, the trial court found that the entire class had been misclassified. After the second phase of trial, which focused on testimony from statisticians, the court extrapolated the average amount of overtime…

I. BACKGROUND

USB is a nationwide financial services provider. During the relevant period, it operated over 130 branches in California. This class action was brought by USB employees who worked as business banking officers (BBOs).1 BBOs sell bank products, including loans and lines of credit, to small business customers. Their primary job is to cultivate new business. After a BBO acquires a new client, a client manager handles the portfolio and maintains the relationship. A BBO can be assigned to work with up to four bank branches. Although they typically use one branch office as a home base, some BBOs work from multiple branches or their homes. A May 1997 job description states that BBOs were expected to develop and manage customer relationships and to ―grow[] [USB‘s] business through prospecting, networking, cross-selling and relationship management.‖ Among

1 This position was previously called ―Small Business Banker.‖ It was renamed after a merger in 2001, but the duties of the position did not change. To avoid confusion, we refer to all employees in this position, both before and after 2001, as BBOs.

2 several other ―essential functions,‖ BBOs were required to ―call[]…