Class Actions Brief Blog

A generalized company policy may supply the starting point for a class-certification motion. But, as the Fourth Circuit recently reiterated, a policy described at too high a level of abstraction cannot substitute for the rigorous, element-specific analysis Federal Rule 23 demands.

In Overby v. Anheuser-Busch, LLC, the Fourth Circuit vacated certification of a Rule 23(b)(3) class alleging that Anheuser-Busch failed to pay employees at its Williamsburg, Virginia brewery for pre- and post-shift work they claimed was required under a corporate policy. The court concluded that the issues common to the class were defined too generally and obscured significant variation in the putative class members’ alleged work, the timing and location of that work and the statutory standards governing their claims. See Overby v. Anheuser-Busch, LLC, No. 25-1520, 2026 WL 1718962, at *1, 5-7 (4th Cir. June 15, 2026).

The opinion is a notable application of the Fourth Circuit’s 2024 decision in Stafford v. Bojangles’ Restaurants, Inc., 123 F.4th 671 (4th Cir. 2024), which warned that broad, policy-based formulations often mask material differences among putative class members that inhibit certification. In Overby, the court again emphasized that a common question must be framed with reference to the concrete elements of the asserted claims, not merely the plaintiffs’ overarching allegation that their employer maintained an unlawful policy.

The plaintiffs were hourly employees at Anheuser-Busch’s brewery working in brewing, operations, quality assurance, utilities and maintenance. They were paid for their scheduled shifts. Any overtime required prior approval. The plaintiffs alleged that Anheuser-Busch required various activities before the employees reached their workstations and after they left them, including donning and doffing personal protective equipment (PPE), complying with COVID-19 health protocols, participating in handoff meetings and securing or putting away tools. They alleged that the company’s practice of paying only for scheduled shift time left those activities uncompensated.

The district court certified a class defined to include all current and former non-exempt Williamsburg brewery employees subject to the company’s timekeeping system from July 1, 2020, through final disposition of the action. In finding commonality and predominance, the court relied principally on two issues: (1) whether Anheuser-Busch compensated employees for mandatory pre- and post-shift work, and (2) whether any failure to do so violated Virginia law.

The Fourth Circuit held that formulation was too abstract, recognizing “one can always frame a question in such an abstract manner as to elicit a common response.” Borrowing from an en banc Sixth Circuit opinion, the Fourth Circuit held that such “sematic gerrymandering” does not reflect the demands of Rule 23. Id. at *6 (citing Speerly v. Gen. Motors, LLC 143 F.4^th 306, 318 (6th Cir. 2025)).

Although the question appeared common on its face, answering it for the class would require first resolving a variety of individualized questions: Did a particular employee perform the allegedly compensable activity? Was the activity mandatory? Did it occur before or after paid shift time? Did it occur at the Brewery or elsewhere? And which version of the applicable Virginia wage-and-hour statutes governed the employee’s claim? Those questions did not have common answers.

The court’s objection, however, went beyond factual variation. It identified a structural flaw in the district court’s common question: whether Anheuser-Busch failed to compensate mandatory pre- and post-shift labor “circularly assume[s] that all class members in fact performed off-shift work and that Anheuser-Busch required the work to be performed off-shift.” Id. at *5. In other words, the purportedly common question could not even be posed without first resolving the very individual threshold inquiries, whether a given employee performed particular tasks, and whether those tasks were mandatory and uncompensated, that the class mechanism is meant to avoid. That circularity rendered the question unsuitable as a basis for certification, independent of the factual differences among class members that the court went on to catalog.

For example, employees did not all perform the same alleged off-shift activities. While employees used certain baseline PPE in industrial work areas, additional PPE requirements varied by role. Handoff meetings likewise varied by job, shift, and time period—some employees testified that such meetings did not occur consistently or were no longer required for particular positions. And the proposed class included employees hired after the Brewery discontinued its COVID-19 protocols in February 2022, even though those protocols formed part of the asserted common policy.

The applicable legal standards also varied. The Virginia Overtime Wage Act was substantially amended in July 2022, changing from an independently structured state-law regime to one that tracks the FLSA. As a result, some putative class members were subject to the pre-amendment legal standard, some to the post-amendment standard, and some to both. The district court failed to account for that distinction in its commonality or predominance analysis.

The Fourth Circuit was careful to distinguish these liability-related variations from individualized damages questions. It explained that differences in the time employees spend on a common activity do not necessarily defeat certification, and that courts may sometimes rely on representative proof, statistical averages, or bifurcated proceedings to resolve damages on a class-wide basis. A court must first establish, however, that the challenged practices are sufficiently uniform across class members to warrant class treatment before turning to a common damages model.

The upshot was that the district court’s class definition assumed that each employee had a viable claim that could be proved using common evidence, despite substantial variation in job duties, employment periods and alleged off-shift work.

The Fourth Circuit did not foreclose a narrower class. It noted that the district court could consider subclasses limited, for example, to employees who worked during the COVID-19 protocol period, employees governed by the pre-2022 version of the Virginia overtime statute, or employees in a particular Brewery department. But the court was equally clear that subclassing is not the only path on remand: the district court retains discretion to deny class certification altogether. Id. at *7. Each proposed subclass must independently satisfy Rule 23, and the court cautioned that subclasses “are not a cure-all” for the deficiencies it identified. As a practical tip, Defendants facing similar remands should preserve the argument that certification should be denied outright, rather than treating narrower subclasses as a foregone conclusion.

Overby provides a practical roadmap for defendants opposing wage-and-hour class certification. And it represents a continuation of the Fourth Circuit’s stringent application of Rule 23 standards in recent years. If employers are faced with such a case, counsel should take care to focus discovery on the actual activities plaintiffs contend are compensable, whether employees performed those activities, whether they occurred outside paid time and whether the relevant facts differ by job, department, work period or location.