In re ABM Indus. Overtime Cases, No. A132387 (D1d4 Jan. 10, 2018)
This is a big wage and hour class action—it covers 35,000 janitors—and it has been pending for a long time—the complaint was filed in 2007 and the first notice of appeal in 2011. Indeed, the appeal has been pending so long that the trial court’s order denying class cert predates Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1049 (2012), the California Supreme Court’s seminal decision on class cert in wage-and-hour cases.
Like any case this big, things are somewhat complicated. But basically, Plaintiffs claim that the Employer paid them according to their schedules, not the hours they actually worked, that it automatically deducted time for an unpaid meal break, regardless of whether the break was taken, and that it failed to reimburse compensable travel expenses. The trial court found that common issues didn’t predominate on any issue, and that the various sub-classes defined by Plaintiffs were defined on the basis of to-be-proven injuries, and thus was not ascertainable.
Throughout the class period, Employer maintained all its time and payroll records in a database. In support of cert, Plaintiff offered a declaration from a database expert who reviewed the data and offered testimony that it showed a reasonably uniform pattern of violations. The trial court, however, rejected the testimony, claiming that the expert wasn’t qualified and that the testimony was irrelevant.
The expert based his qualifications based on practical experience with database management—he didn’t have some kind of specialized degree or other credential in the field. And he had been previously found qualified to opine on database issues in other cases. But the trial court found his explanation of his qualifications to be too general to find him qualified. That, according to the Court of Appeal here, was error. While it would have been preferable for plaintiffs to give more specifics in the witness’s expertise, what he offered was adequate to the task he performed, particularly in light of his declaration’s step-by-step analysis of how he performed his analysis. The trial court was too focused on formal education and credentialing, even though Evidence Code § 720(a) permits an expert’s to be qualified as such based on “special knowledge, skill, experience, training, or education.”
And then the Court of Appeal is “mystified” by the trial court’s relevance ruling. The Employer’s maintenance of a comprehensive database of time and wage information is certainly evidence of the company’s wage and timekeeping practices and thus relevant to whether those practices were applied company-wide. Although the Court doesn’t opine on the relevance of each and every one of the expert’s opinions, it holds that their wholesale exclusion was erroneous, and suggests that the admissibility decision was tainted based on the trial court’s overall belief that class cert simply wasn’t appropriate.
Moreover, the exclusion of the expert testimony clearly prejudiced Plaintiffs. Although they submitted a large number of employee declarations showing violations, expert testimony was necessary to tie them together into a consistent practice. Absent that expert testimony, Plaintiffs were left “without any evidence of systemic wrongdoing other than the information contained in the declarations and deposition testimony submitted in connection with their class certification motion, materials which the trial court found insufficient in number to demonstrate predominant common questions.”
Moving on to the merits, as set out by Brinker, the typicality, predominance, and superiority aspects of class cert in a wage-and-hour case generally turn on the existence of a uniform policy that can be measured against the standard set by the law. Such a policy can be shown by an actual formal policy, as well as by pattern and practice evidence, evidence of centralized practices, statistical evidence, and expert testimony.
Unlike most federal jurisdictions, California also requires specific proof that the members of a class (or here, sub-classes) are ascertainable. That is, class membership must be definable based on objective characteristics and facts that make the ultimate definition of who is in or out of the class feasible whenever that determination becomes necessary. Ascertainability doesn’t depend on individualized issues. That is, so long as the definition embraces the predominant common question among the class, the fact that some class members might not prevail due to individualized issues does not mean the class membership isn’t ascertainable. Moreover, if these standards are met, a definition can still be ascertainable even if encompasses ultimate facts or conclusions of law.
Here, given the availability of Employer’s database and the expert’s analysis of that data, the Court of Appeal finds that the trial court’s ruling that the sub-classes are not ascertainable was “simply not defensible.” The records permitted the identification of class and subclass members sufficient to define coherent groups and to give them notice. If the records turn out to be somewhat overbroad in identifying successful claimants—e.g., if some class members did, in fact, received rest breaks notwithstanding the Employer’s alleged policy—that doesn’t mean the class is not ascertainable.
As to predominance, the trial court lacked the benefit of Brinker when it denied certification. But “[t]he common theme in [Brinker, and many cases since] is that the plaintiff’s theory of liability could be determined based on common uniform policies applicable to the class as a whole.” Here, Employer had a policy that assumed that each employee worked only his or her scheduled shift and that meal breaks were taken.
For an employer that starts from those assumptions to comply, one would expect to see a lot of manual entries to address the circumstances where the assumptions don’t prove true. (I.e., corrections for each time anyone clocks in or out off schedule or misses a break.) The expert’s analysis, however, which showed only .3 percent of the total entries had any manual correction, called the efficacy of the Employer’s presumptions into question. That, along with the case law holding that an employer’s failure to keep accurate records shifts the burden of proof to establish its wage and hour law compliance, was sufficient to make the assumptions policy the predominant inquiry.
Reversed.
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