What to make of this one? I should have commented on it long ago, I know, but that start-your-own-law-firm thing is fairly time consuming, so I get to writing when I can. So while I was doing some show prep for this upcoming weekend's podcast, I finally took a look at Benton
v. Telecom Network Specialists, Inc. (Oct. 16, 2013) to see for myself what the Court of Appeal (Second Appellate District, Division Seven) did that has many plaintiff-side practitioners so excited.
In Benton, the plaintiffs, cell-phone tower technicians, filed a
wage and hour class action lawsuit against Telecom Network Services (TNS) alleging,
among other things, violation of meal and rest break requirements and failure
to pay overtime. Most of the proposed
class of technicians were hired and paid by staffing companies that contracted
with TNS. The remainder of the technicians were hired and paid by TNS directly.
Plaintiffs alleged that TNS was the
employer of both categories of technicians and moved to certify their claims. The trial court denied certification, holding
that TNS’s liability could not be established “through common proof because: (1)
the technicians worked under ‘a diversity of workplace conditions’ that enabled
some of them to take meal and rest breaks; and (2) the staffing companies that
hired and paid many of the TNS technicians had adopted different meal, rest
break and overtime policies throughout the class period.”
The Court of Appeal reversed, remanding for further proceedings. In an extensive opinion tracking development
of the certification standards as applied to wage and hour cases beginning primarily with
Brinker, the Court also examined
decisions in Bradley v. Networkers
International, 211 Cal. App. 4th 1129 (2012) and Faulkinbury v. Boyd & Associates, 216 Cal. App. 4th 220 (2013).
Discussing Bradley,
the Court said:
On remand from the Supreme Court,
however, the Court of Appeal concluded that, under the analysis set forth in Brinker, the trial court had improperly
focused on individual issues related to damages, rather than on the plaintiffs’
theory of liability. (Bradley, supra, 211 Cal.App.4th at p. 1151.)
According to the court, Brinker had
clarified that “in ruling on the predominance issue in a certification motion,
the court must focus on the plaintiff’s theory of recovery and assess the
nature of the legal and factual disputes likely to be presented and determine
whether individual or common issues predominate.” (Id. at p. 1150.) The court further explained that “plaintiffs’
theory of recovery [wa]s based on Networkers’ (uniform) lack of a rest and meal
break policy and its (uniform) failure to authorize employees to take
statutorily required rest and meal breaks. The lack of a meal/rest break policy
and the uniform failure to authorize such breaks are matters of common proof.
Although an employer could potentially defend these claims by arguing that it
did have an informal or unwritten meal or rest break policy, this defense is
also a matter of common proof.” (Id.
at p. 1150.)
Slip op., at 22-23. Notice that, at least in the context of these wage particular wage & hour claims, which have a natural tendency to be governed by some set of implementing policies, the certification question endorsed in this case is the question of whether the defendant's policy is legal, not whether any particular employee stumbled into compliant behavior.
Similarly, discussing Faulkinbury,
the Court said:
Upon remand from the Supreme Court,
the appellate court concluded that Brinker
had rejected the mode of analysis set forth in its original opinion. As to
plaintiffs’ meal break claim, the appellate court explained that Brinker clarified that the defendant’s
liability would attach “upon a determination that [defendant’s] uniform on-duty
meal break policy was unlawful . . . . Whether or not the employee was able to
take the [off-duty] 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.’ [Citation.]” (Faulkinbury,
supra, 216 Cal.App.4th at p. 235.)
Slip op., at 24-25. This line of cases appears to strongly emphasize what was, for a time, an argument receiving less traction: variations in damages does not require denial of certification.
After establishing the framework for its analysis, the Court
examined the trial court’s ruling:
The written order (as well as
statements made at the motion hearing) make clear that the trial court did not
believe TNS would be liable upon a determination that its lack of a meal and
rest policy violated applicable wage and hour requirements; rather, it
concluded that TNS would become liable only upon a showing that a technician
had missed breaks as a result of TNS’s policies.
Slip op., at 27. The
Court then rejected the trial court’s mode of analysis, holding that Brinker, and then Bradley and Faulkinbury
clarified the correct approach:
As explained in Bradley and Faulkinbury, however, Brinker
“expressly rejected” this mode of analysis. (Bradley, supra, 211
Cal.App.4th at pp. 1143, 1151; Faulkinbury,
supra, 216 Cal.App.4th at pp. 235,
237.) As succinctly stated in Faulkinbury:
“the 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.’
[Citation.]” (Faulkinbury, supra, 216 Cal.App.4th at p. 235; see also Bradley, supra, 211 Cal.App.4th at p. 1151 [“under the logic of [Brinker],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 [take a break] during the work day does not show
that individual issues will predominate in the litigation”].) Indeed, Bradley and Faulkinbury both specifically concluded that evidence showing that
some class members’ working conditions permitted them to take breaks, while others
did not, was not a sufficient basis for denying certification. (See Faulkinbury, supra, 216 Cal.App.4th at pp. 236-237 [evidence that some employees
were able to “take breaks at [their] posts”, while others “could not leave the
assigned post for a rest break” does not “establish individual issues of
liability”]; Bradley, supra, 211 Cal.App.4th at p. 1150
[evidence that some employees worked “alone for long periods of time” or “took
the authorized rest or meal break” was insufficient to show individual issues
predominated.)
Slip
op., at 27. The Court continued in this
same vein, thoroughly rejecting both the defendant’s theories and trial court’s
method of analysis, repeatedly holding that variations in experiences by class
members impacted their damages, not the plaintiffs’ theory of the case, which
challenged the absence of lawful policies required by the Wage Order.
You can, at least in this context, certify the question of whether the defendant did the right thing, not the question of whether the plaintiffs always received the right thing. In other words, luck won't save you; legal policies, implemented as written, will. Somehow, I think the wage & hour defense bar is celebrating this just as much...
