Noel v. Thrifty Payless, Inc. should be decided soon, addressing whether class members must be identifiable


In what might be a significant decision, Noel v. Thrifty Payless, Inc. was argued to the California Supreme Court on May 8, 2019. The issue presented for review is as follows: “Must a plaintiff seeking class certification under Code of Civil Procedure section 382 or the Consumer Legal Remedies Act demonstrate that records exist permitting the identification of class members?” While California appeared to have settled this question decisively many decades ago, the question arose when the First Appellate District (Division Four) opined that such identification was required. A decision may issue any time in the next couple of weeks. This is not likely to be an issue for wage and hour cases — where employer records are basically always available as a source of identification information — but is may be an issue in consumer class actions, where specific class members identification may not be possible.

Brinker Analysis: California still protects employees

The California Supreme Court has been consistent in its recognition that California law protects employees as part of a fundamental policy of the state of California. For instance, in Sav-On, the California Supreme Court observed that “California’s overtime laws are remedial and are to be construed so as to promote employee protection.” More recently, in an easily overlooked opinion in the matter of Brinker Restaurant Corporation, et al. v. Superior Court (Hohnbaum) (April 12, 2012), the California Supreme Court began its opinion by observing, “For the better part of a century, California law has guaranteed to employees wage and hour protection, including meal and rest periods intended to ameliorate the consequences of long hours.” At this point, it should be clear that, at least to some degree, Brinker will be consistent with the Court’s employee-protective view of California law. Brinker is long and complex. The unanimous opinion is 54 pages long, and Justice Werdegar offered an additional concurring opinion about four pages long to offer further guidance on the certification issue remanded for further consideration.
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UPS v. Superior Court holds that Labor Code section 226.7 allows for 2 premium payments per workday

Today the Second Appellate District, Division Eight, giveth and taketh away.  In the first of two opinions issued by that Court today, the Court considered, in UPS v. Superior Court (February 16, 2011), whether Labor Code section 226.7 "authorizes one premium payment per work day regardless of the number or type of break periods that were not provided, or two premium payments per work day – one for failure to provide a meal period and another for failure to provide a rest period."  Slip op., at 2.  The Court concluded that section 226.7 allows up to two premium payments per work day.  In reaching that holding, the Court discussed with approval the statutory analysis and review of legislative history undertaken by the one federal court to exmaine the issue.  See, Marlo v. United Parcel Service, Inc. (C.D. Cal. May 5, 2009, CV 03-04336 DDP).

I must apologize for the reduced post frequency to start out this year.  Between a long overdue vacation, a bit of a lull in appellate decisions of note, and an impending move, I've been a bit short on blogging time.  My life is currently compressing into stacks of moving boxes and won't rehydrate until late March.  Thank you for your patience and for reading.