Wednesday, December 10, 2014

No Breaks for Walgreen Break Class

In re Walgreen Company Overtime Cases, No. B230191 (D2d1 Nov. 13, 2014)

This is yet another class cert motion in wage and hour case employing the Brinker standard. Class cert was denied by the trial court, and, in what has been a somewhat rare occasion, the court of appeal affirms. Plaintiffs theory was that Walgreen had a permissible written meal and break policy but that it regularly deviated from that policy on a classwide basis. Plaintiff’s problem, however, is that his evidence didn’t jibe with his theory and was otherwise thoroughly uncredible.

First, plaintiff provided an expert declaration that assumed there was a Labor Code violation every time someone didn’t take a break. But that assumption doesn’t square with Brinker itself, which held that employers needed to have a policy that made breaks available to any employee who wanted to take one, but they were not required to ensure that every employee actually took his or her break. Because the testimony was founded on so crucially flawed of an assumption, it was correctly excluded.

Second, plaintiff submitted a bunch of emails from Walgreen execs, where they were all over store managers to make sure employees got their meals and breaks. Contrary to showing a bad policy, the emails showed that Walgreen corporate went to great lengths to ensure that their legal meal and break policy was actually followed in Walgreen stores.

Finally, plaintiff submitted forty-four form declarations from class members attesting that they didn’t get their scheduled breaks. Unfortunately, many of these class members admitted in their depositions that they signed them without reading them and, at bottom, they weren’t really true. Oops! As the court here warns, “[f]orm declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.”


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