Wage and Hour Class Action Mediation Brief

Section 510 of the Labor Code and the applicable IWC Wage Order require employers to pay overtime for hours worked beyond eight in a day and forty in a week (and double-time as provided in the statute and Wage Order).

Labor Code §§ 226.7 and 512 and the applicable wage orders require Defendants to authorize and permit meal and rest periods to their employees. California law prohibits employers from employing an employee for more than five hours without a meal period of at least 30 minutes. “[A]n employer’s obligation is to provide an off-duty meal period: an uninterrupted 30–minute period during which the employee is relieved of all duty.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1035 (2012). “An employer must relieve the employee of all duty for the designated period.” Id. at 1034. An employer cannot “impede or discourage [employees] from [taking off-duty rest periods].” Id. at 1040. Section 226.7 and applicable wage orders also require employers to authorize and permit employees to take 10-minute rest periods for each four hours or major fraction thereof of work, and to pay employees their full wages during their rest periods. “[A]s a general matter,” one rest break should fall on either side of the meal break.” Id. at 1032. Unless the employee is relieved of all duty during the 30-minute meal period and 10-minute rest period, the employee is considered “on duty” and the meal or rest period is counted as time worked under the applicable wage orders. Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 264.

When an employer fails to provide a rest or meal period in accordance with the applicable wage orders, the employer must pay the employee one additional hour of pay at the employee’s regular rate of pay for each workday that a required rest period is not provided, and one additional hour of pay for each work day that a compliant meal period is not provided. Labor Code § 226.7.

Labor Code §§ 201-203 require an employer to pay all wages owed to an employee who has been discharged or who has quit. If the employer fails to pay an employee all wages owed within the statutorily required time period, § 203 calls for a penalty on the employer equal to one day’s rate of pay for each day the employer fails to pay, for a time period not to exceed 30 days. Defendants’ liability for waiting-time penalties under Labor Code § 203 flows directly from the violations established above. Defendants easily satisfy the requirement that its failure to pay proper wages upon termination was “willful.” The standard for willful is not high: “[t]he employer’s refusal to pay need not be based on a deliberate evil purpose to defraud workmen of wages which the employer knows to be due.” Rivera v. Rivera, No. 10-CV-01345-LHK, 2011 WL 1878015 at *7 (N.D. Cal. May 17, 2011). A willful failure to pay wages within the meaning of § 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. Id.

It is well settled that it is unlawful for an employer to retaliate against an employee who discloses information to a person with authority over him, where the employee has reasonable cause to believe the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Lab. Code §1102.5. The employer must prove by clear and convincing evidence that it would have taken the adverse action regardless of whether the employee disclosed such information. Lab. Code § 1102.6.

“The ‘ultimate question’ the element of predominance presents is whether ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ The answer hinges on ‘whether the theory of recovery advanced by the proponents of certificationis, as an analytical matter, likely to prove amenable to class treatment.’ A court must examine the allegations of the complaint and supporting declarations and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible. ‘As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.” Brinker, supra, 53 Cal.4th at 1021-1022. (Internal citations and footnote omitted).

A court “must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence.” Brinker, at 1024.

A plaintiff need not make any showing that Putative Class Members (“PCMs”) were universally denied all breaks or overtime premiums to warrant class certification, but instead need only show a “consistent” application of the asserted unlawful policy. Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 409. “In Brinker’s wake, courts have repeatedly found that a defendant employer’s evidence of an inconsistent application of an illegal policy to be insufficient on its own to defeat class certification.” Id.; see also Benton, supra, 220 Cal.App.4th at 730; Faulkinbury, supra, 216 Cal.App.4th at 237; Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278, 289; Bradley, supra, 211 Cal.App.4th at 1143.

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.4th 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.10.

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.