Break Laws and Class Action Procedure

May 17, 2019

Labor Code §§ 226.7 and 512 and the applicable wage orders require employers to authorize and permit meal 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. Unless the employee is relieved of all duty during the 30-minute meal period, the employee is considered “on duty” and the meal 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 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 compliant meal period is not provided. Labor Code § 226.7.

California IWC 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 willfully 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. 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). 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. Id.

California courts have interpreted Business and Professions Code § 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).

Under Labor Code § 351, gratuities are the property of an employee, and not the employer. That statute prohibits an employer or its agent from imposing a mandated tip pooling policy that requires employees to share their tips with the employer or it’s “Agent.” Section 350 of the Labor Code defines “Agent” as “every person other than the employer having the authority to hire or discharge any employee or supervise, direct, or control the acts of employees.” See, e.g. Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138 (Restaurant Floor Manager who supervised servers on a “daily basis” was an “Agent” under § 350).

“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 certification is, 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.

The test to establish the typicality requirement is simply whether the representatives and the potential class members 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.

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. “Claims 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: David Lipps
Category: Class Actions, Missed Meal and Rest Breaks
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