Of particular note was the Court’s analysis of plaintiffs’ meal/rest period claims. Plaintiffs’ theory of liability was somewhat unique, asserting a “pressure” based theory on seven distinct practices, several of which appeared to be designed to conceal the fact that breaks were not being provided:
(1) PENSKE managers overseeing the Whirlpool account throughout the state regularly emphasized that breaks were not be taken until all installations were completed; (2) PENSKE never instituted a policy that either used the dispatch schedule to include a designated meal period nor did the company allow dispatchers to acknowledge, record or document when and if meal periods were actually taken; (3) PENSKE's use of a uniform scheduling algorithm resulted in delivery trucks being filled to capacity and built-in unrealistic installation and traffic estimates so that "driver/installers" were always at risk of maxing-out their regulatory "hours of service limits;" (4) PENSKE engaged in a common uniform policy and practice that required [class members] to be in constant communication with dispatch, management and customers and prevented them from turning off such devices during breaks; (5) PENSKE implemented a uniform policy that shifted the record-keeping requirement for meal periods to the driver/installer, who was told to record meals on the daily dispatch log, rather than be maintained by a central dispatch. The standard log included only one place entry of a single meal period and did not document whether the "installer" took a meal period[;] (6) PENSKE policy was to require a meal period to be recorded on the dispatch log before clerks were permitted to accept the end of day paperwork and allow the [class members] to clock out. This resulted in anecdotal evidence of clerks directing employees to fabricate a meal period entry whether taken or not; and (7) PENSKE managers, who were focused on maximizing productity (sic) and maintaining customer service engaged in a common practice of ridiculing, criticizing and/or reprimanding employees who returned to the yard with uninstalled appliances in a given workday.See Dilts, 2010 U.S. Dist. LEXIS 40568, at 25-26.
Significantly, the Court found that common issues predominated, notwithstanding the fact that many of these defacto policies were to be established by way of anecdotal proof:
Thus, the question here is whether Defendant, by its policies, failed to provide meal breaks to the putative class members. Or, put another way, whether Defendant's policies effectively denied driver/installers and installers uninterrupted lunch periods. The majority of Plaintiff's evidence as to this question is anecdotal, consisting of the declarations of driver/installers and installers. (See Pl.'s Statement of Fact ## 28, 29, & 31.) Plaintiffs also offer some evidence from an employee of Defendant stating that dispatchers did not schedule lunches. (Hill Decl., Ex. 32 (Bloodworth Dep.) at 22:12-22.)
The evidence also indicates that truck activity was tracked by Defendant's "corporate XATA satellite positioning" system. (Memo. ISO Motion at 2.) Defendant also "provided each driver/installer a Nextel device for communication with the dispatchers, supervisor and customers during the day." (See, e.g., id. at 8.) This information is probative of whether breaks were received and whether Defendant's policies prevented uninterrupted meal breaks. The evidence also suggests that employees could not indicate that they had not taken a meal break and that Defendant never paid a premium wage for a missed break. (See Pl.'s Statement of Fact # 12.) Morever there seems to be no debate that Defendant's policies did not account for the statutorily mandated second meal break. These assertions should be largely provable through Defendant's records. Further, to the extent that these policies were informal and enforced through "ridicule" or "reprimand," they should be provable through common representative testimony. (See, e.g., Hill Decl., Ex. 9 (Davis Decl.) P 4.)See Dilts, 2010 U.S. Dist. LEXIS 40568, at 31-33.