Certification of a Class Under California Law

The California Supreme Court has identified three requirements for the certification of a class: (1) “the existence of an ascertainable and sufficiently numerous class”; (2) a well-defined community of interest”; and (3) “substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4^th 1004, 1021. The community of interest requirement in turn has three factors: (1) common questions of law or fact predominate over individual questions; (2) the class representatives have claims or defenses typical of the class; and (3) the class representatives can adequately represent the class. Id.

Under California law, an employer must pay an employee for all “hours worked.” Hours worked are defined as “the time during which an employee is subject to the control of an employer, and includes all the time that the employee is suffered or permitted to work, whether or not required to do so.” Morillion v. Royal Packing Co., (2000) 22 Cal.4^th 575, 578. Under this rule, an employer is deemed to have “suffered or permitted [an employee] to work” if it knew or should have known that its employees were working off the clock. Id. at 584-585; see also Arredondo v. Delano Farms Co. (E.D.Cal. Feb. 21, 2014) – F.R.D. –, 2014 WL 710945 at *30-31. In Arredondo, that Court certified an off the clock class for work performed, but not required, noting that the “single significant question is whether Plaintiffs can show that uncompensated and unrecorded pre-shift work was performed.” Id. at *32.

As the California Supreme Court has noted, an employer meets the requirements of the applicable Wage Order’s meal period requirement if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Brinker, supra, 53 Cal.4^th at 1036. The employee must be free to use the brief time that they are eating for whatever purpose they desire. Id.

The Division of Labor Standards Enforcement (“DLSE”) has issued an opinion letter on whether a policy requiring truck drivers to remain near their vehicles when eating constituted an “off duty” meal period under California law. The Division found that such a policy renders any meal period actually taken to be “on duty” because the employee is “not free to use such time for his or her own use but is, in fact, engaged in work duties for the benefit of the employer.” (Dept. Industrial Relations, DLSE Opinion Letter No. 2009.06.09 (June 9, 2009)).

The DLSE concluded that the drivers referred to in that letter likely qualified for the “nature of the work” exception to the off-duty meal period requirement, but the meal periods were unquestionably “on duty.”

Brinker clarified that the Wage Orders require an employer to authorize and permit an employee to take one ten-minute rest break for shifts from three and one-half to six hours in length, a second ten minutes for shifts lasting between six and ten hours, and a third ten minutes for shifts lasting from ten to fourteen hours. Brinker, 53 Cal.4^th at 1029. The break time must be duty free. Dept. Industrial Relations, DLSE Opinion Letter No. 2002 .02.22 (Feb. 22, 2002), (“2002 Opinion Letter”). The ten minutes of rest required during each four hour period (or major fraction thereof) during a shift must be consecutive, meaning an employer cannot consider numerous brief rest periods during a four-hour work period to constitute the required ten consecutive minutes of rest per four hours worked. Id., cited with approval in Faulkinbury v. Boyd (2013) 216 Cal.App.4^th 220, 237.

There is no on-duty rest break exception as there is for meal breaks, and there is similarly no opinion letter from the DLSE indicating that in the rest break context, time spent waiting for some other task to be completed while on duty is considered to be time not under the employer’s control or direction.

The test to establish the typicality requirement is simply whether the representatives and the PCMs have been injured by the same course of conduct, whether the action is based on conduct that applies to both the representatives and the PCMs, and whether the PCMs and the representatives suffered the same or similar injuries. See, e.g. Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4^th 1497, 1509.

In determining which is the superior procedure for adjudicating the claims of the PCMs – one class action or scores of individual actions: 

The relevant comparison lies between the costs and benefits of adjudicating plaintiffs’ claims in a class action and the costs and benefits of proceeding by numerous separate actions – not between the complexity of a class suit that must accommodate some individualized inquiries and the absence of any remedial proceeding whatsoever.

Sav-On Drug Stores (2004) 34 Cal.4th 319, 339 n.l0

The first, and most important, benefit of a class action procedure will be that it prevents “a failure of justice in our judicial system.” Linder v. Thrifty Oil Co., (2000) 23 Cal.4th 429, 434-435. Individual damages may be far too modest for employees to be able to obtain representation. Without class treatment these employees may have no realistic opportunity to pursue their claims against their employer.

Certification will also promote the efficient and economic use of judicial resources. Id. Conducting separate trials regarding the same uniformly-implemented policies and practices simply makes no sense for employees, employers, or the judicial system. Sav-On Drug Stores, supra, 34 Cal.4th at 340 (“It would be neither efficient nor fair to anyone, including defendants, to force multiple trials to hear the same evidence and decide the same issues.”) Indeed, “[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment. Brinker, supra, 53 Cal.4^th at 1033, citing Jaimez, 181 Cal.App.4^th at 1299-1305; Ghazaryan v. Diva Limousine, Ltd. (2009) 169 Cal.App.4^th 1524, 1533-1538; Bufil v. Dollar Financial Group, Inc. (2008) 162 cal.App.4^th 1193, 1205-1208.

Even if a class is not certified, The California Supreme Court has held that a plaintiff need not satisfy class action requirements in order to bring a representative action under the PAGA. Arias v. Superior Court (2009) 46 Cal.4th 969, 981.