Monday, September 20, 2010

District Court Extends Dukes v. Walmart To Certify Off-the-Clock and Meal Period Claims Using Statistical Sampling: Adoma v. Univ. of Phoenix

On August 31, 2010, Eastern District Court Judge, Lawrence K. Karlton, certified off-the-clock and meal period claims of enrollment counselors in Adoma v. Univ. of Phoenix, 2010 U.S. Dist. LEXIS 96388 (E.D. Cal. Aug. 31, 2010).  Plaintiffs’ off-the-clock and meal period claims derived from an alleged requirement that enrollment counselors be available at any time to take calls forwarded by defendant’s nationwide automated call-routing system, which plaintiffs claimed resulted in employees not being paid for time spent working through meal periods.  The Court’s analysis in certifying such claims is noteworthy for the use of statistical sampling to overcome issues with predominance.

With regard to the off-the-clock claim – which “a plaintiff may establish … by proving that (1) he performed work for which he did not receive compensation; (2) that defendants knew or should have known that plaintiff did so; but that (3) the defendants stood ‘idly by’” [See id., at 11] – plaintiffs asserted that the requisite elements would be established by using records from defendant’s automated call-routing system. Significantly, Court noted that this method of proof was imperfect, as it included defects which would necessitate an individualized fact specific inquiry:
Plaintiffs argue that rather than relying on login/logout times, they can look at records of calls made in combination with the aux codes to determine what work an employee was actually doing and when. [] Defendants respond that the aux codes are also unreliable. Some evidence, including depositions of the named plaintiffs, indicates that employees often fail to enter the appropriate aux code or change in aux code when the employee leaves for or returns from lunch, especially when the employee is in a meeting or engaged in another "aux" activity immediately prior to or after lunch. Although defendants further argue that employees inappropriately fail to distinguish between other aux codes, the "meal break" code is the only potentially non-compensable code, so ambiguity among the others is not relevant to the reconstruction of hours worked. Plaintiffs acknowledge that employees sometimes improperly record meal periods. Plaintiffs nonetheless argue that the question is whether an employee, or employees generally, "regularly forgot to log out for lunch." The court cannot agree. Plaintiffs' claim is for failure to pay for hours actually worked, and this is a fact specific inquiry. This is not to say that individual issues predominate: trends may establish, by a preponderance of evidence, that most days in which meal periods were not recorded, the employee in fact took no meal period. The issue, however, is whether the trend is evidence of individual days, not vice versa.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 15-16.

Yet, despite acknowledging that “[a]nother court has held that similar computerized data could not demonstrate predominance of common issues where the data did not ‘take into account the possibility that an employee may not have actually worked between the punch-in time and start time or between the end-time and punch-out time.’” [Adoma, 2010 U.S. Dist. LEXIS 96388, at 14 (citing Forrand v. Federal Exp. Corp., 2009 U.S. Dist. LEXIS 22912, *12 (C.D. Cal. Feb. 18, 2009)], a point which even plaintiffs agreed was an issue here, the Court concluded that individual inquiry could be overcome by the use of statistical sampling similar to that approved by the Ninth Circuit in Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), and reaffirmed  in Dukes v. Walmart, 603 F.3d at 625-27:
All potential class members used both the Avaya and MyHR systems. While defendants argue that the Avaya system provides an inadequate indicator of the number of hours employees actually worked, the types of arguments are common to all class members. Hilao appears to permit a representative inquiry to determine the magnitude of these effects, and at this stage, the court cannot distinguish Hilao. The remaining questions are also common. Notably, the question of whether the Avaya system gave defendants at least constructive knowledge of the employee overtime is a common question. Thus, it appears that common questions predominate. Although defendants argue that the named plaintiffs are not typical, the asserted atypicalities pertain to facts irrelevant to the above theories of liability and proof. Accordingly, plaintiffs have shown commonality, typicality, and predominance of common issues as to their state law off-the-clock claim.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 22-23.

With regard to meal period claims, the Court acknowledged the Brinker issue, but nonetheless concluded that certification was appropriate (at least for now), based on the same statistical analysis:
Of course, the legal question regarding the scope of the employer's obligation is itself a common question of law. As to common questions of fact, plaintiffs contend that they will use the Avaya phone records system to demonstrate how often employees skipped meal periods. For the reasons stated above it appears that this predicate factual question is susceptible to common proof. Accordingly, common issues predominate.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 26-27.

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