18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 405 Plaintiff could pursue a constitutional challenge to § § 2783(d)(1) and 2785(b) through a PAGA action, brought on behalf of the State of California; (iii) whether § 2783’s exemption for individuals employed as securities brokers-dealers or investment advisors was constitutional; and (iv) whether § 2785(b)’s retroactivity provision was constitutional. The Court granted summary judgment in favor of Defendant as to issues three and four, bur denied it as to issues one and two. As to issue one, the Court rejected Defendant’s argument that Plaintiff must name the California Attorney General as a Defendant in order to challenge the statute’s constitutionality because the Attorney General is an indispensable party. Likewise, as to the second question, the Court was unpersuaded by Defendant’s assertion that since the sole relief Plaintiff sought was civil penalties under the PAGA, he acted as a proxy for the Attorney General, and he could not also challenge the laws the Attorney General was deputized to enforce. Third, the Court found that § 2783’s exemption for individuals who were securities broker-dealers or investment advisors was constitutional because the Legislature had a sound reason to exempt a limited class of "traditional independent contractors," including financial professionals, from the ABC test. Id . at *13. Finally, the Court held that § 2785(b)’s retroactivity provision was constitutional. In so ruling, the Court reasoned that in enacting § 2785(b), the Legislature intended to clarify Dynamex and thus the statute should be given a retroactive effect. For these reasons, the Court granted Defendant’s motion for summary judgement in part. Salazar, et al. v. See ’ s Candy Shops, Inc., 2021 Cal. App. LEXIS 391 (Cal. App. 2d Dist. April 26, 2021). Plaintiff, a retail worker, brought a putative wage & hour class action alleging, among other claims, violations of California Labor Code (“CLC”) for failure to provide required meal breaks. Specifically, Plaintiff alleged that Defendant did not provide second meal breaks to store employees who worked shifts longer than 10 hours in violation of California law. Defendant’s official policy complied with California law by requiring a second meal period when an employee’s work shift exceeded 10 hours. This policy was described in Defendant’s human resources manual and available to employees online. Plaintiff moved to certify a meal break class and argued that Defendant’s scheduling procedures provided common evidence of a practice to deny employees a second meal period during shifts exceeding 10 hours. In support of its motion, Plaintiff pointed to Defendant’s preprinted “Break and Lunch Schedule Form” that did not contain a column for a second meal break. Id . at *6. Defendant argued that this was because it did not regularly schedule shifts that exceeded 10 hours and it was “very rare” for employees to work such shifts. Id. Approximately 0.3% of Defendant’s employee shifts during the relevant time period were longer than 10 hours. The trial court denied Plaintiff’s motion for class certification on two grounds. First, the trial court found that Plaintiff had failed to show that she could prove through common evidence that Defendant had a consistent practice to deny second meal breaks. The trial court inferred from the fact that 24% of the shifts over 10 hours actually included a recorded second meal break that “at least some” employees were offered such a break. Id . at *8. The trial court explained that individualized testimony of both managers and employees was therefore permissibly tendered to show that the proper breaks were offered (or not) and that the complained of practice was (or was not) consistently applied. As such, the trial court concluded that this individualized evidence would devolve into a series of mini-trials. Second, the trial court found that Plaintiff’s proposed trial plan was inadequate to manage these individual issues. The trial court noted that Plaintiff did not explain how Defendant would be able to present its defenses without individualized inquiries, and it concluded that Plaintiff’s proposed trial plan lacked the kind of detail needed to show that trial of this case on a class basis was manageable. Plaintiff appealed to the California Court of Appeal, which affirmed the trial court’s order. The Court of Appeal held that the trial court properly denied Plaintiff’s motion for class certification because the evidence supported a conclusion that individual issues would predominate at trial. The Court of Appeal agreed that Plaintiff’s evidence supported a conclusion that at least some class members were offered a second meal period in accordance with the law and thus individual testimony would be necessary to show that Defendant consistently applied an unlawful practice. It reasoned that in these circumstances, a trial that would devolve into a series of mini-trials to address individualized issues. Moreover, the Court of Appeal agreed that Plaintiff had failed to provide a trial plan that would permit the employer to present its defenses without individualized inquiries. For these reasons, the Court of Appeal affirmed the trial court’s order denying Plaintiff’s motion for class certification. Santana, et al. v. Postmates, Inc. , 2021 Cal. App. Unpub. LEXIS 599 (Cal. App. 2d Dist. Jan. 29, 2021) . Plaintiff, a former courier, filed a representative action alleging that Defendant intentionally misclassified couriers as independent contractors to minimize costs in violation of the California Private Attorneys General Act of 2004