A recent federal district court decision denying a motion for class certification of wage-and-hour claims reflects continuing disagreement among courts in California regarding the suitability for class treatment of meal and rest break claims when an employer has no written break policy.
In Vasquez v. First Student, Inc., No. 2:14-CV-06760-ODW (Ex), 2015 WL 1125643 (C.D. Cal. Mar. 12, 2015), the plaintiff sought to certify five classes and subclasses of school bus drivers in an action against a transportation company. Among other claims, the plaintiff argued that the company had failed to provide rest breaks because it failed to establish a written rest break policy for some drivers.
California law requires employers to “authorize and permit” non-exempt employees to take rest periods at the rate of 10 minutes per four hours of work or major fraction thereof (though rest periods are not required for employees whose total daily work time is less than three-and-a-half hours). The plaintiff claimed she was never told that she was paid for rest breaks or that she was entitled to a 10-minute break if she worked at least three-and-a-half hours.
The district court denied class certification, concluding that the plaintiff had failed to meet the requirement of Federal Rule of Civil Procedure 23(b)(3) that “questions of law or fact common to class members predominate over any questions affecting only individual members.” In reaching this holding, the court took the employer’s side on an issue that has divided other courts.
In Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), the California Supreme Court stated that “[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.” But courts have disagreed as to whether the mere lack of a written break policy can amount to uniform conduct appropriate for class treatment.
For example, in Bradley v. Networkers Int’l, LLC, 211 Cal. App. 4th 1129 (2012), as modified on denial of reh’g (Jan. 8, 2013), the California Court of Appeal reversed a denial of class certification on meal and rest break claims, concluding that the lack of a meal and rest break policy constituted uniform companywide conduct evidencing a failure to provide meal and rest breaks. However, other courts have disagreed. In Dailey v. Sears, Roebuck & Co., 214 Cal. App. 4th 974 (Mar. 20, 2013), as modified (Mar. 27, 2013), the Court of Appeal held that the mere absence of a formal written meal and rest break policy was insufficient to establish a policy or practice of denying required breaks. And in Duran v. U.S. Bank National Association, the California Supreme Court recently observed in a footnote that it expressed no opinion on the question of whether the absence of a uniform policy supports certification. 59 Cal. 4th 1, 31 n.28 (2014).
In Vasquez, the district court concluded that, regardless of whether the employer had a lawful policy, “substantial manageability problems remain regarding proof of whether a policy was actually implemented.” Rest breaks were not recorded, and the parties provided conflicting declarations as to whether rest breaks were actually taken. The court concluded there was no method of common proof to establish the classwide break claims, and that the fact finder could not determine when and if employees took breaks, short of testimony from each employee, which would render the class unmanageable. While acknowledging that the need to make individual damages determinations would not by itself defeat certification, the court determined that “the manageability problem in the present case goes beyond individualized damages. Here, the issue is whether classwide methods of proof exist to show that California law was actually violated.”
Vasquez shows that employers can defeat certification of break claims even where there is no written break policy. It also illustrates how lack of common proof and individualized liability determinations, particularly where there are no records, render the trial of class claims unmanageable.