Two California Courts of Appeal Hold that Certification Is Appropriate for Challenges to an Employer’s Stated Policy (or Lack of a Stated Policy)

Two California appellate opinions issued last week confirm that, following Brinker, when an employee challenges an employer’s stated policy (or lack of a stated policy) as violating a wage order, that challenge constitutes a predominant common question, making class certification appropriate. The varying degrees to which individual class members were harmed by the policy (e.g., who missed meal periods and why) is a question for damages. These decisions are important in recognizing that class certification must be available to challenge an employer’s policy despite the fact that the effect of the policy on various class members will differ.

Faulkinbury v. Boyd & Assocs. (4th App. Dist.)

In Faulkinbury v. Boyd & Associates, Inc., G041702, --- Cal.Rptr.3d --- , 2013 WL 1927019 (Cal. App. 4th May 10, 2013) (opinion available here), the Court of Appeal for the Fourth District issued a published opinion reversing the trial court’s denial of certification. The Plaintiffs in Faulkinbury were security guards who claimed meal break violations, rest break violations, and improper calculation of overtime pay. The trial court denied certification as to all three issues, concluding that individual questions predominated. The Court of Appeal initially heard the case prior to Brinker, and reversed the denial of certification only with respect to the claim alleging improper calculation of overtime (Faulkinbury I). After granting review of that decision, the Supreme Court decided Brinker; it then vacated Faulkinbury I and directed the Court of Appeal to reconsider the case in light of Brinker.

Upon reconsideration, the Court of Appeal held that certification was appropriate as to all three issues. The Court explained:  “Brinker teaches that we must focus on the policy itself and address the issue whether the legality of the policy can be resolved on a classwide basis” (emphasis in original).

With respect to meal breaks, plaintiffs alleged that the defendant had a blanket policy of requiring all security guards to sign meal-break waivers and remain on-duty (and paid) for all meals, regardless of whether the working conditions at a particular station necessitated on-duty meals. Because “[t]he claim made by Plaintiffs [was] that [defendant’s] policy is unlawful,” the court concluded that the question of liability was a class-wide claim. If it turned out that on-duty meals were necessary for certain individual positions but not others, that finding would go to damages, not liability, and would not preclude class certification.

With respect to rest breaks, plaintiffs alleged that the defendant did not have a policy regarding provision of rest breaks, and had an express policy requiring security guards to remain at their posts at all times. Again, whether the absence of a rest break policy violated the wage order was a class-wide liability question; if it turned out that some individual class members were taking breaks anyway, this would go to damages. The Court’s reasoning on the overtime issue was similar.

Bluford v. Safeway Stores (3d App. Dist.)
In a recent unpublished decision – publication of which would be appropriate – Bluford v. Safeway Stores, Inc., C066074, 2013 WL 1897410 (Cal. App. 3d May 8, 2013) (opinion available here), the Court of Appeal for the Third District likewise reversed the trial court’s denial of certification with respect to three claims – a rest break claim, a meal period claim, and a wage statement claim. The plaintiffs were truck drivers for Safeway who were paid partly based on the number of miles they drove and partly by the hour or task for certain non-driving work. The employer did not track or separately pay for the time that drivers were on rest breaks.

The rest break claim alleged that Safeway was required to pay an hourly rate to drivers for the time they were on breaks. The drivers argued that because they were not driving during breaks, the per-mile compensation system resulted in no pay for the time they were on breaks. Safeway argued that the driver’s compensation for their breaks had been accounted for in the rate of pay for miles driven. The Court held that the question was proper for certification because it challenged “Safeway’s compensation system,” and did “not concern the drivers’ subjective reasons for taking or not taking a rest period.” Peeking at the merits, the Court also rejected Safeway’s argument, likening it to the “averaging” of pay to comply with the minimum wage law, which the Court rejected in Armenta v. Osmose, Inc. (2005) 135 Cal. App. 4th 314, 323. The Court similarly found that the plaintiffs’ meal period claim was proper for certification because it challenged Safeway’s announced policy of providing only one meal period, even though the wage order required two meal periods for drivers who worked longer than 10 hours.

On the itemized wage claim, plaintiffs argued that their wage statements did not allow them to determine whether their wages compensated them for all hours worked without performing complicated calculations. The court held that this was a sufficient “injury” under Labor Code § 226 to make certification appropriate, reversing the trial court’s contrary conclusion.

Both Faulkinbury and Bluford demonstrate the importance of Brinker in allowing workers to challenge illegal wage and hour policies on a class-wide basis, reserving for the damages phase the individualized assessments of the harm caused by such policies.

Disclaimer:  Nothing in the foregoing commentary is intended to provide legal advice in any particular case. Bryan Schwartz Law cannot represent you unless you have a signed representation agreement with the firm.