Cacho v. Eurostar, Inc., No. BC558689 (D2d7 Dec. 23, 2019)
This is an appeal of a denied class cert motion in a class action over meal and rest breaks for shoe store employees. As typical with these cases, it comes down to whether the plaintiffs could show that the employer had a uniform policy or practice that violated the wage and hour laws. If “plaintiff’s theory is based on a common unlawful policy, evidence that some employees were treated differently does not defeat certification; rather, class members may individually have to prove their damages.” But the question often arises, as it does here, whether the employers’ policy was “uniform” enough to meet that test. If not, no class cert.
This is often a matter of a degree. If the employer has a clearly unlawful policy, evidence of a few contrary incidents won’t merit class certification. On the other hand, evidence that a clearly lawful policy was generally ignored won’t defeat class certification. And in the middle, if a policy isn’t perfectly clear on everything, whether or not class cert is appropriate might depend on whether it was implemented in a uniformly lawful or unlawful manner.
Here, the employer’s written meal break policy was generally compliant with California law. At best, it was a little ambiguous on certain details about how it would be implemented. For instance, it said that an employee who works at least five hours is entitled to a 30 minute unpaid meal break. That is a correct statement of the law. It did not, however, spell out that, when an employee worked a shift longer than five hours, the first break needed to commence within that five-hour window, or that if the employee was on the clock for ten hours, a second meal-break was permitted. The company put in evidence, however, that it was its practice to give the first break within the first five hours and to give a second break for a ten hour shift. Plaintiff, on the other hand, put in statistical evidence that a meal break was missed, short, or late on about 12 percent of shifts.
The Court of Appeal holds that wasn’t enough to meet certification under the prevailing Brinker standard. An employer’s policy doesn’t not need to “embody every aspect of the Labor Code” to be compliant. And the evidence of violations in the aspects of the policy that weren’t written out was too uneven to permit proof on a classwide basis.
The rest break policy was basically the opposite. It incorrectly stated that paid rest breaks needed to be offered on a four hour shift, while the wage order at issue says three-and-a-half. But Plaintiffs offered no evidence at all that anyone who worked between three and a half and four hours was ever denied a break. Indeed, the evidence showed that the company generally did not schedule shifts shorter than four hours. Under the circumstances, even with a technically deficient policy, Plaintiffs couldn’t show that the violations were subject to common proof.
Plaintiffs also alleged a off-the-clock- work claim, notwithstanding the employer’s unequivocally clear policy that all work was required to be paid. That’s not bullet proof. Evidence of systematic managerial pressure for off the clock work in the face of a written policy might still merit class cert. But there was no such evidence here.
Finally, the Court of Appeal also affirms the trial court’s findings that these Plaintiff’s weren’t typical. Among other things, their evidence was largely anecdotal and limited to themselves—they failed to obtain evidence from other employees.
Affirmed.
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