Still Goin' . . .

Lubin v. The Wackenhut Corp., No. B244383 (D2d4 Nov. 21, 2016)

This is a really long-pending wage and hour class action. Way back in 2011, while the case was pending trial, the U.S. Supreme Court issued its decision in Dukes v. Walmart, which substantially raised the bar for class certification under the Federal Rules. Relying on Dukes, defendants moved to decertify. The trial court granted the motion back in 2012, and the case has been pending appeal since then. But then the California Supreme Court decided Brinker—which focuses the class cert inquiry in wage and hour claims on whether the employer had an illegal policy—and the U.S. Supremes decided Tyson—which permits the use of statistical proof in class actions, albeit only in certain contexts.

After examining a whole pile of precedent decided after the trial court’s decertification order, the Court of Appeal rules that the trial court erred in decertifying the class. The big issue in the case was whether Plaintiff employees—security guards—could be required to eat on-duty meals under the governing wage order. The resolution of that issue could be addressed, per Brinker, to whether the Employer had a policy that unlawfully required on-duty meals, even when they were not merited by the relevant test. Framed that way, common issues predominate. And other issues—such as whether employees signed agreements necessary to make the eligible for on-duty meals—could be decided broadly by dividing the class into subclasses depending on which of a few versions of the Employer’s employment agreement were signed by each class member. 

The court goes on to apply the same analysis for plaintiffs rest break and wage statement claims.

Reversed.