Policy, Practice, and Class Certification

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.

Common Injuries in Class Cert.

Kizer v. Tristar Risk Mgmt., No. G052558 (D4d3 Jul. 27, 2017)

The trial court denied class cert in a putative wage-and-hour class action brought by insurance claims examiners. The central issue is whether the members of the class were misclassified as exempt administrative employees under the pertinent wage order. Plaintiffs convinced the court that that issue could be tried class-wide. But what they failed to do was to convince the court that, if the class should have been non-exempt, they were subject to an official or de facto policy that required the class members to work overtime. Indeed, Plaintiffs didn’t present very much in the way of evidence that any of the class members worked overtime. Absent that proof, the court found that a common fact issue didn’t exist, much less predominate. It denied cert on that ground and because plaintiff’s claims weren’t typical.

On appeal, plaintiff tries to frame the issue of if and how much overtime each class member worked as addressed only to damages. Individualized damages issues, after all, don’t preclude certification, so long as liability is subject to class-wide resolution. But as the court explains here, that framing isn’t right because there’s a difference between the existence of a common injury and the amount of damages. Whether there was a company-wide overtime requirement goes to liability because misclassification alone doesn’t make the employer liable. (Technically speaking, the exemptions are an affirmative defense.) An employer violates the Labor Code only when an employee who has been misclassified as exempt is required to do stuff that Labor Code says non-exempt employees can’t be made to do. Stuff like working overtime hours without getting time-and-half. And without a company-wide policy (formal or not) imposing such a requirement, liability can’t really be addressed on a class-wide basis.

Affirmed.