Moreover, the fact that Defendant apparently required employees who were not relieved of all duties to record a meal period is not a basis to defeat class certification. Defendant attempts to explain away this record-keeping problem in a footnote in its brief: The ascertainability problem is presented not by officers with off-duty meal breaks failing to record meal break times, but rather by the fact that officers with on-duty meal breaks also record meal break times, making these sign-in sheet records indistinguishable . . . . If the Court is wondering why officers with on-duty meal breaks would record meal break times, this finds explanation in the fact that AlliedBarton's written 'Recording Hours Worked' policy requires officers to record meal break times and does not except officers with on-duty meal breaks.(Mot. at 6 n. 3; see also Reply at 7-8.)
There is a serious question as to whether this system of recordkeeping complies with the law. The applicable Wage Order requires every employer to "keep accurate information with respect to each employee." See California Industrial Welfare Commission Wage Order No. 4-2001, subd. 7. As part of this requirement, an employer must keep "[t]ime records showing when the employee begins and ends each work period." Id. Had Defendant not required those employees who were not relieved of all duties to record a meal period as time off work, the timesheets alone would have provided an accurate basis for determining exactly who is in the class. It is the inaccurate information in Defendant's records that creates the issue upon which Defendant now seizes as a basis for decertification.
However, even if Defendant is not specifically required by law to keep records of which employees take on-duty meal breaks, Defendant's failure to record such information is not a basis to defeat class certification. IWC Wage Order No. 4-2001 and related wage and hour laws are designed to guarantee a 30-minute meal period with limited and narrowly-construed exceptions. See Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 958-59 (9th Cir. 2013). Decertifying the class simply because Defendant failed to keep accurate records would frustrate the purpose of the Wage Order and related wage and hour laws. Cf. id. at 959; see Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1190, 78 Cal. Rptr. 3d 572 (2008) (shifting burden of proof to defendant to show which class members did not perform work where wages were governed by city's Living Wage Ordinance ("LWO"), even though LWO did not require defendant to keep records distinguishing LWO work from other work); Aguiar v. Cintas Corp. No. 2, 144 Cal. App. 4th 121, 134-35, 50 Cal. Rptr. 3d 135 (2006) ("To the extent questions arise later in the litigation about how to determine which putative class members worked at least 20 hours per month on [LWO contracts] . . . that burden falls on [defendant]. It was [defendant's] business decision to commingle [LWO contracts] with those of other customers and to allow all employees to work on the items . . . ."); see also Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 540 (6th Cir. 2012) (finding "compelling" district court's rationale that "[t]he need to manually review files is not dispositive. If it were, defendants against whom claims of wrongful conduct have been made could escape class-wide review due solely to the size of their businesses or the manner in which their business records were maintained.").See Dynabursky, 2014 U.S. Dist. LEXIS 58236, at 9-12.