Establishing Typicality in a Class Action Suit

August 8, 2017

Labor Code §§ 226.7 and 512 and the applicable wage orders require employers to authorize and permit meal and rest periods to their employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes. “[A]n employer’s obligation is to provide an off duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1035 (2012). “An employer must relieve the employee of all duty for the designated period.” Id. at 1034. An employer cannot “impede or discourage [employees] from [taking off-duty rest periods].” Id. at 1040. Section 226.7 and applicable wage orders also require employers to authorize and permit employees to take 10-minute rest periods for each four hours or major fraction thereof of work, and to pay employees their full wages during their rest periods. “[A]s a general matter,” one rest break should fall on either side of the meal break.” Id. at 1032. Unless the employee is relieved of all duty during the 30-minute meal period and 10-minute rest period, the employee is considered “on duty” and the meal or rest period is counted as time worked under the applicable wage orders. Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 264. When an employer fails to provide a rest or meal period in accordance with the applicable wage orders, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that a required rest period is not provided, and one additional hour of pay for each work day that a compliant meal period is not provided. Labor Code § 226.7.

In California, on-duty meal periods, in which employees are not relieved of all duties, are only legal under certain narrow circumstances. Some employers require employees to sign forms agreeing to take “on-duty” meal periods. However, on-duty meal periods are permissible only under very limited circumstances where the nature of the work prevents an employee from being relieved of all duty. Under this narrow exception to the general rule that employers must provide off-duty meal periods, an employer who opts to implement on-duty meal periods carries the burden of establishing that the facts justify an on-duty meal period.  Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 961 (9th Cir. Cal. 2013).

The Ninth Circuit, interpreting California law, has held that the “on duty” meal period is a limited alternative to the off-duty meal period requirement, and can only be used by employers in the narrowest of circumstances, based upon the “nature of the work.”  Abdullah, supra, 731 F.3d at 959. Generally, the nature of the work exception has been applied in only two circumstances: “(1) where the work has some particular, external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer.” Id. at 959. The Ninth Circuit found certification appropriate where a company has uniform policy of requiring all employees to execute these waivers at hiring, since the evidence needed to establish the legality of the waiver, “will yield a common answer that is ‘apt to drive the resolution of the litigation,’.” Id. at 962. The Ninth Circuit thus affirmed class certification for the question of whether an employer “can invoke a ‘nature of the work’ defense on a class-wide basis, where the need for on duty meal periods results from its own staffing decisions.” Id. at 963. Similarly, the California Court of Appeals, following from the California Supreme Court’s decision in Brinker, has held that class certification is appropriate where the employer required “blanket off-duty meal break waivers in advance from all security guard employees, regardless of the working conditions at a particular station,” since the employer itself “treated the off-duty meal break issues on a class wide basis.” Faulkinbury v. Boyd & Associates, 216 Cal.App.4th 220, 234 (2013).

The Wage Orders define “hours worked” as the “the time during which an employee is subject to the control of an employer and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Labor Code § 1194(a) provides that employees are entitled to recover the unpaid balance of their minimum wage or overtime compensation. Specifically, § 510 requires an employer to pay overtime compensation at one and one-half times the regular rate of pay for an employee where the employee works more than eight hours in a day or forty hours in a week.

Labor Code §§ 201-203 require an employer to pay all wages owed to an employee who has been discharged or who has quit. If the employer fails to pay an employee all wages owed within the statutorily required time period, § 203 calls for a penalty on the employer equal to one day’s rate of pay for each day the employer fails to pay, for a time period not to exceed 30 days.

A willful failure to pay wages within the meaning of § 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. The standard for willful is not high: “[t]he employer’s refusal to pay need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due.” Rivera v. Rivera, No. 10-CV-01345-LHK, 2011 WL 1878015 at *7 (N.D. Cal. May 17, 2011).

California courts have interpreted § 17200 broadly, and have consistently held that a violation of any law or statute can serve as the predicate for pursuing a § 17200 claim. Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F.Supp.2d 1035, 1048 (C.D. Cal. 1998). A violation of the Business and Professions Code as a result of the violations alleged above extends the limitations period to four years.

The test to establish the typicality requirement in a class action suit is simply whether the representatives and the putative class members (“PCMs”) have been injured by the same course of conduct, whether the action is based on conduct that applies to both the representatives and the PCMs, and whether the PCMs and the representatives suffered the same or similar injuries. See, e.g. Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1509. As long as their claims are typical of the proposed classes that they seek to represent, and they also satisfy the adequacy requirement because their interests are not antagonistic to the interests of the class, class counsel is qualified to conduct the proposed litigation. See, e.g. McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.

“The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ The answer hinges on ‘whether the theory of recovery advanced by the proponents of certificationis, as an analytical matter, likely to prove amenable to class treatment.’ A court must examine the allegations of the complaint and supporting declarations and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible. ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.’

Brinker, supra, 53 Cal.4th at 1021-1022.  (Internal citations and footnote omitted).

A court “must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence.” Brinker, at 1024.

“In Brinker’s wake, courts have repeatedly found that a defendant employer’s evidence of an inconsistent application of an illegal policy to be insufficient on its own to defeat class certification.” Id.; see also Benton, supra, 220 Cal.App.4th at 730; Faulkinbury, supra, 216 Cal.App.4th at 237; Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278, 289; Bradley, supra, 211 Cal.App.4th at 1143.

In determining which is the superior procedure for adjudicating the claims of the PCMs – one class action or scores of individual actions:

The relevant comparison lies between the costs and benefits of adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous separate actions – not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever.

Sav-On Drug Stores (2004) 34 Cal.4th 319, 339 n.10

The first, and most important, benefit of a class action procedure will be that it prevents “a failure of justice in our judicial system.” Linder v. Thrifty Oil Co., (2000) 23 Cal.4th 429, 434-435. Without class treatment, PCMs might have no realistic opportunity to pursue their claims against their employers.

Certification will also promote the efficient and economic use of judicial resources. Id. Conducting separate trials regarding the same common policies and practices simply makes no sense for the plaintiffs, defendants, or the judicial system. Sav-On Drug Stores, supra, 34 Cal.4th at 340 (“It would be neither efficient nor fair to anyone, including defendants, to force multiple trials to hear the same evidence and decide the same issues.”) Indeed, “[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment. Brinker, supra, 53 Cal.4th at 1033, citing Jaimez, 181 Cal.App.4th at 1299-1305; Ghazaryan v. Diva Limousine, Ltd. (2009) 169 Cal.App.4th 1524, 1533-1538; Bufil v. Dollar Financial Group, Inc. (2008) 162 cal.App.4th 1193, 1205-1208.

The California Supreme Court has held that a plaintiff need not satisfy class action requirements in order to bring a representative action under the PAGA. Arias v. Superior Court (2009) 46 Cal.4th 969, 981.

Author: Richard Hoyer
Category: Class Actions, Legal Procedure, Missed Meal and Rest Breaks, Overtime, Unpaid Wages, Wage and Hour
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