The Policy Needs to Be a Policy for Class Cert

Koval v. Pac. Bell Tel. Co., No. A139570 (D1d1 Dec. 31, 2014)

If you have been reading court of appeal cases for the past couple of years, you probably know that the key to getting a wage and hour class certified is to allege that the employer had an illegal meal and rest break policy (or that it had no policy at all to ensure compliance). The problem for the plaintiffs in this case is that the defendant had a compliant policy. So the plaintiff alleged that the policies led to unlawful results as they were applied. But, for the purposes of class certification, common interests only predominate when a policy is consistently applied.* If the theory is that a facially lawful policy is applied in an inconsistent matter that violates the wage and hour laws, the illegality of the employer’s conduct is not really susceptible to class treatment. So class cert was properly denied.

Affirmed.

*Don't know what would have happened if the plaintiff argued that the defendant's policy was to have a paper policy, but then to leave its enforcement up to individual managers so much that the policy was effectively no policy at all. Which is basically what happened in the Walgreen case, decided last November, although the plaintiff there also lost because the evidence didn't substantiate the theory.