152 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com The Court of Appeal dismissed this evidence by stating that “the employer’s liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages.”759 The Court of Appeal did not explain how such “damages” could be ascertained on a classwide basis where the facts demonstrated that individualized factors determined whether or not a specific employee was actually provided meal breaks, despite the uniform written policy. In another case illustrating a more lax approach to certification, Benton v. Telecom Network Specialists, Inc., telecommunications technicians filed a wage and hour class action lawsuit alleging violations of meal and rest break laws and overtime requirements.760 The plaintiffs' theory was that the defendant violated the law by failing to adopt a policy authorizing and permitting its technicians to take meal periods or rest breaks. Citing Brinker, the court explained that “for purposes of certification, the proper inquiry is ‘whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.’”761 The court therefore held that the class should be certified, even though the defendant had demonstrated that the experiences of individual employees varied widely, and that some employees were subcontracted out to other employers that did have lawful written meal and rest break policies.762 A California Court of Appeal has also relied on Brinker’s “theory of liability” approach to reverse a trial court’s decertification order. In Hall v. Rite Aid Corp., a suitable seating class action, the trial court initially granted class premiums (i.e., whether a class member was actually ever denied a meal or rest break, thereby triggering the statutory right to a premium payment). The Court pf Appeal held there was no requirement to establish that all class members were actually entitled to premium wages in order to certify a class, and that a “system-wide failure” to have in place a mechanism to pay premiums was sufficient to present a common question. Later, however, the Court of Appeal affirmed a summary judgment for Safeway, because the plaintiffs had failed to demonstrate a methodology for establishing the value of the right to be paid premium wages, which the plaintiffs had insisted at the class certification stage would not be based on measuring actual premiums due for meal periods that were not provided. Esparza v. Safeway, 36 Cal. App. 5th 42, 5557 (2019). But see Ordonez v. Radio Shack, Inc., 2014 WL 4180958, at *5 (C.D. Cal. Aug. 15, 2014) (the existence of a uniform and facially unlawful rest break policy was insufficient for class certification in the absence of any method to determine whether the policy was actually implemented on a classwide basis); Campbell v. Vitran Express, Inc., 2016 WL 873009, at *3-4 (C.D. Cal. March 2, 2016) (“[L]iability does not lie purely based upon a facially defective policy. ... To [so hold] would be logically absurd and legally erroneous.”). 759 Faulkinbury, 216 Cal. App. 4th at 234. 760 Benton v. Telecom Network Specialists, Inc., 220 Cal. App. 4th 701, 705 (2013). 761 Id. at 726; see also Williams v. Superior Court, 221 Cal. App. 4th 1353, 1364 (2013) (holding that plaintiffs’ allegation that the defendant had an unwritten policy to deny overtime pay was an appropriate issue for class-wide resolution, and that the fact that the evidence demonstrated that many putative class members did not work off the clock was merely a “damages” issue); Jones v. Farmers Ins. Exch., 221 Cal. App. 4th 986, 997 (2013) (holding that the plaintiffs’ theory that Farmers required unpaid pre-shift work was amenable to class-wide resolution; the trial court erred in denying certification by focusing on the fact that this only affected some employees and then only on certain days depending on a number of varying factors; all of these variables only went to “the right to recover damages” and therefore did not preclude class treatment); Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 941 (2016) (reversing denial of class certification and holding Brinker and Faulkinbury require trial courts to analyze the plaintiffs’ theory of liability to determine commonality and predominance requirements). 762 Id. at 727; see also Martinez v. Joe’s Crab Shack, 221 Cal. App. 4th 1148, 1164-65 (2013) (holding that class could properly be certified based on the plaintiffs’ claims that managers were not properly classified as exempt, despite job description that set forth exempt duties and evidence that many putative class members performed exempt duties most of the time. The court stated: “we understand from Brinker ... a renewed direction that class-wide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof.”). But see Koval v. Pac. Bell Tel. Co., 232 Cal. App. 4th 1050, 1062 (2014) (even though the employer had multiple written policies or “best practices” that purportedly infringed on employees’ right to meal and rest breaks, the court denied class certification because the implementation of these policies was not uniform, thereby necessitating individualized inquiries).
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