Monday, May 13, 2013

Fourth District Reverses Prior Meal/Rest Period Certification Opinion Based On Brinker, Orders “On-Duty” Break Theories To Be Certified On Behalf of Security Guard Class: Faulkinbury v. Boyd & Associates, Inc.

On May 10, 2013, the Fourth District Court of Appeal (Division Three) reversed its prior opinion in Faulkinbury v. Boyd & Associates, Inc., 185 Cal. App. 4th 1363 (2010), which had affirmed the trial court’s denial of certification of meal and rest break claims, premised largely on the employer’s use of on-duty meal agreements, on behalf of a proposed class of approximately 4000 security guards.  The opinion is the second among the bevy of “grant-and-hold” appellate decisions which the Fourth District has reversed based on the California Supreme Court decision in Brinker. [The first was Bradley v. Networkers Internat., LLC, 211 Cal.App.4th 1129 (2012), which is discussed here].

The Court’s subsequent Opinion – Faulkinbury v. Boyd & Associates, Inc, __ Cal.App.4th __ (2013) [2013 Cal. App. LEXIS 370] – reversed and remanded the trial court’s denial of certification, with directions to certify all of the theories of liability assert by the plaintiffs.  The Opinion contains significant analysis favorable to the plaintiff’s perspective on several issues, including the two issues discussed below.

First, the Court held that the trial court erred in denying certification of a meal break theory predicated upon the employer’s uniform use of a standardized “on-duty” meal agreement, reasoning that the employer’s “blanket use” of such an agreement was the very type of policy which Brinker deemed suitable for class-wide adjudication:
Liability turns on the issue whether Boyd's policy requiring all security guard employees to sign blanket waivers of off-duty meal breaks is lawful. That issue can be resolved on a classwide basis. "The theory of liability—that [the employer] has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment." (Brinker, supra, 53 Cal.4th at p. 1033.)
Indeed, by requiring blanket off-duty meal break waivers in advance from all security guard employees, regardless of the working conditions at a particular station, Boyd treated the off-duty meal break issue on a classwide basis.
 See Slip Opinion, at 14-15.

Material to this finding, the Court acknowledged that it had erred in its prior opinion by improperly conflating issues of individual class member “damages” with the overarching issue of whether the employer’s alleged unlawful policy gave rise to “liability.”  As the Court explained, Brinker mandates that determination of an employer's liability focus exclusively on whether the employer’s policy violates the wage and hour laws, whereas the issue of whether the employee was able to take a legally compliant break despite the employer’s policy goes to damages:
In Faulkinbury I, we concluded that even if Boyd's on-duty meal break policy was unlawful, Boyd would be liable only when it actually failed to provide a required off-duty meal break. Brinker leads us now to conclude Boyd would be liable upon a determination that Boyd's uniform on-duty meal break policy was unlawful. In Brinker, the Court of Appeal, in reversing class certification, had concluded that because rest breaks could be waived, any showing on a class basis that class members missed or took shortened rest breaks would not "'necessarily establish, without further individualized proof,'" that the employers had violated the Labor Code and the relevant IWC wage order. (Brinker, supra, 53 Cal.4th at p. 1033.) The Supreme Court stated that conclusion was error. An employer is required to permit and authorize the required rest breaks, and if it adopts a uniform policy that does not do so, then "it has violated the wage order and is liable." (Ibid.) In other words, the employer's liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages, and "[t]he fact that individual [employees] may have different damages does not require denial of the class certification motion." (Jaimez, supra, 181 Cal.App.4th at p. 1301.)
 See Slip Opinion, at 15-16.

Second, the Court held that the trial court erred in denying certification of plaintiffs rest break theory, which, boiled to its essence, was based upon the employer’s lack of policy explaining how a rest break was to occur in the face of (1) “an express policy requiring all security guards to remain at their posts at all times” and (2) employee handbook policy “identifying ‘unacceptable behavior’ to include ‘[l]eaving work station without permission of supervisor or proper relief during absence.’”  See Slip Opinion, at 16-17.  As reasoned by the Court, because “[t]here does not appear to be an on-duty rest break exception as there is for meal breaks” and because “the rest period must be … duty-free’” [Slip Opinion, at 17-18], that “[m]easured against these legal standards, the lawfulness of Boyd's lack of rest break policy and requirement that all security guard employees remain at their posts can be determined on a classwide basis.” See Slip Opinion, at 18.

Moreover, like its meal break analysis above, the Court acknowledged that it had erred in its prior opinion by improperly conflating issues of individual class member “damages” with the overarching issue of whether the employer’s alleged unlawful policy gave rise to “liability”:
In opposition to the motion for class certification, Boyd submitted declarations from current employees. Some declarations stated the employee was relieved of duties in order to take off-duty rest breaks; other declarations stated breaks were taken during periods of inactivity; at least one declaration stated the employee determined, based on the circumstances, when to take a rest break; and another declaration stated the employee frequently took rest breaks at her post. While, in Faulkinbury I, we concluded this evidence established individual issues of liability, we are now convinced, in light of Brinker, this evidence at most establishes individual issues of damages, which would not preclude class certification. Boyd's liability, if any, would arise upon a finding that its uniform rest break policy, or lack of policy, was unlawful.
See Slip Opinion, at 18-19.

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