Saturday, December 19, 2009

Northern District Certifies Sunday Worker Break Class in Ross v. US Bank Nat'l Ass'n

On November 25, 2009, Judge Susan Illston certified a meal/rest period and off the clock class in Ross v. US Bank Nat'l Ass'n, 2009 U.S. Dist. LEXIS 116875 (N.D. Cal. Nov. 25, 2009), on behalf of hourly employees who worked Sunday shifts. Plaintiffs’ meal and rest period claims were predicated upon a “barrier/pressure” theory arising out of defendant’s alleged policy and practice of scheduling only two employees for Sunday shifts, coupled with a security policy requiring at least two employees to be on duty at all times, and a policy requiring that customers receive prompt service. See id., at 18-19. With regard to Plaintiffs’ off the clock claim, plaintiffs further alleged that statistical evidence established that 94 out of the 99 sampled employees had performed off-the-clock work during their recorded meal periods. See id., at 21-22.

In granting plaintiff’s motion, the Court reasoned that the common issue of whether defendant’s challenged policies created a barrier to taking uninterrupted meal and rest periods predominated notwithstanding the fact the defendant maintained policies actually requiring employees take meal and rest periods in accordance with California law:
Defendant contends that individual questions predominate, but defendant supports this contention primarily by advancing arguments that either address the legal merits of plaintiffs' claims or contest plaintiffs' factual allegations. Defendant argues that its policy is to comply with California law with regard to meal periods and rest breaks and to strictly prohibit off-the-clock work. Defendant argues that any violation of such policies is an individualized case that is not suitable for class treatment. But defendant also admits it has a security policy of having at least two employees on duty at all times, which in turn raises a common question as to whether such security policy effectively prohibited employees from taking meal periods and rest breaks on Sundays when only two employees were scheduled to work, and whether defendant is liable for such practices. Defendant also admits it has a policy of discouraging overtime and a practice of scheduling employees to work eight-hour shifts with a one-hour meal period, which in turn raises a common question as to whether such policy and practice forced employees to work off-the-clock during their meal breaks and whether defendant is liable for such practices. Thus, while defendants are correct that individual analyses are required, these individual questions will arise only after significant common questions of law and fact have been answered, and may not arise in the liability context.
See Ross, 2009 U.S. Dist. LEXIS 116875, at 29-30.

Barrier theory is perhaps one of the most effective theories for obtaining class certification of meal and rest period claims. Meal and rest period violations predicated upon a common barrier are antithetical of the issues presently pending before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781, 800 (2008), review granted and opinion superseded in 85 Cal. Rptr. 3d 688 (Oct. 22, 2008), as this theory involves (1) a common compnay policies/practices ideal for class wide adjudication, (2) a lack of employee choice that effectively negates the “individualized” waiver defense, and (3) the potential for employer liability notwithstanding the existence of a facially lawful meal and/or rest period policy. See e.g. Bufil v. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1206 (2008) (“no one disputes that the wage order was posted or that there were designated areas to take a break – these matter naught if a single-shift sole employee or sole employee working with a trainee is not able to take an off-duty break.”). My firm has obtained certification using this theory in three separate cases this year.

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