Tuesday, October 22, 2013

When It Comes to Class Cert, It's All About the Policy

Benton v. Telecom Network Specialists, No. B242441 (D2d7 October 16, 2013)

Division seven of district two reverses a trial court’s order denying class certification because common interests did not predominate.

The case is a wage and hour class action over meal and rest breaks and overtime for technicians who work on cellphone towers. Some of the plaintiff class  members work directly for the defendant, but most are contract workers hired through staffing companies. The technicians work on cell towers that are dotted all over the landscape, and they generally work without supervision. Plaintiff asserted that because the employer/defendant did not have a meal and rest break policy or authorize such breaks, that common issue predominated such that class certification was appropriate. Relying on the California Supreme Court’s recent decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012)—which held, among other things, that an employee could only recover for missed breaks if forced to forego his or her break, as opposed to merely showing that the break was missed—the defendant argued that because of the dispersed and unsupervised work done by the members of the plaintiff class, individualized questions about whether each plaintiff met the Brinker standard predominated. The trial court agreed with defendant and denied certification. Plaintiff appealed.

Addressing the meal and rest break claims, the court of appeal reviewed Brinker, as well as two class certification opinions—Bradley v. Networkers International, 211 Cal. App. 4th 1129 (2012) and Faulkinbury v. Boyd & Associates, 216 Cal. App. 4th 220 (2013)—in cases where the supreme court had granted review and remanded for reconsideration in light of Brinker. The court distilled from all three cases the principle that when a plaintiff’s theory of the case is that the employer had an illegal policy that failed to authorize meal and rest breaks, liability attached to the adoption of that policy. In those cases, that common issue would predominate, making class treatment appropriate. Issues of whether individual class members actually took or waived their breaks could be reserved for an individualized damages inquiry.

Applying this principle, the court found that the fact that some employees worked under unsupervised conditions where they could take breaks did not defeat class certification. Because the plaintiff’s theory was that the employer failed to adopt a meal and rest break policy, that issue predominated and could be determined on a class basis. “[T]he fact that individual inquiry might be necessary to determine whether individual employees were able to take breaks despite defendant’s unlawful policy (or unlawful lack of policy) is not a proper basis for denying certification.” Thus, under Brinker and its progeny, these individualized issues did not preclude the meal and rest break class from being certified. Nor did the fact that some of the employees were paid through staffing companies—some of which might have had valid policies—preclude certification because the plaintiff’s theory was that the employer itself lacked a policy, and that issue was appropriate for class-wide determination.

The court went on to apply similar logic to the plaintiff’s overtime claims. Because these claims were grounded in the employer’s lack of overtime policy, similar individualized issues about the policies of the staffing companies and whether the plaintiff class members actually worked unpaid overtime did not preclude certification. 

Because, however, the employer had raised additional arguments that the trial court did not address, the court of appeal determined that it would not order the trial court to certify the class on remand. Instead, the order was reversed with instruction to reconsider its ruling on remand, in light of the reasoning in the opinion.

Reversed and remanded with instructions to reconsider.

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