The recently published decision in Faulkinbury v. Boyd & Associates, G041702 (Cal.App.4th May 10, 2013) (Faulkinbury II) clarified several important issues in wage and hour class actions. First, the court held that a trial court must certify a class where an employer requires all employees to sign meal-break waivers-even
when some of the employees are able to take off-duty meal breaks. Second, the court held that the lack of a uniform rest break policy may create a common issue that is sufficient for class certification. Third, the court held that an overtime policy that fails to include bonuses and other allowances in calculating the overtime rate of pay presents common questions suitable for class treatment.
Faulkinbury II involved private security guards providing security in residential communities, hospitals, commercial buildings, and retail stores. The plaintiffs claimed that when they were hired, each security guard had to sign an agreement to take an “on-duty meal break.” Plaintiffs further claimed that they were told never to leave their posts, and, as a result, never took a rest break.
The trial court denied the plaintiffs’ motion for class certification. The court of appeal initially upheld that order in Faulkinbury I. However, after the California Supreme Court reached its holding in Brinker, it vacated Faulkinbury I and directed the court of appeal to reconsider in light of Brinker
In Faulkinbury II, the court of appeal explained the impact of Brinker: “[T]he employer’s liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages, and “[t]he fact that individual [employees] may have different damages does not require denial of the class certification motion.” This conclusion followed the holding in Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129-1150-1151:
Under the logic of Brinker’s holdings, when an employer has not authorized and not provided legally required meal and/or rest breaks, the employer has violated the law and the fact that an employee may have actually taken a break or was able to eat food during the workday does not show that individual issues will predominate in the litigation.
These holdings are extremely important because it is usually the case in meal and rest break cases that some class members will have taken breaks, even if the vast majority did not. Faulkinbury II (and Bradley) establishes that these are issues of damages, which should not prevent class certification.
With respect to rest breaks, the court noted that there is no “off-duty rest break” exception. The court then held that where an employer has no formal rest break policy, but requires its employees to remain on duty at all times, this creates a common question that is appropriate for class treatment. The court then concluded that whether or not some employees actually took rest breaks did not defeat class certification. Rather, this creates at most individual issues of damages, which do not preclude class certification.
Faulkinbury II stands for the important proposition that when it comes to class certification, the inquiry must be as to whether the defendant had uniform policies that applied to all class members. If so, then whether or not certain class members actually followed that policy does not affect class certification. Instead, that is an issue of damages.
If you have questions about your rights in the workplace, or would like to speak with an experienced wage and hour attorney, please contact Hunter Pyle Law at 510.444.4400, or email us at inquire@hunterpylelaw.com.