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Wednesday, November 3, 2010

Dilts v. Penske Logistics: District Court Certifies Off-the-Clock, Meal, and Rest Period Action

Thank you to Michael Singer for pointing out Dilts v. Penske Logistics, LLC, 267 F.R.D. 625 (April 26, 2010). The plaintiffs are truck drivers and installers who were assigned to engage in off-site delivery and installation of appliances. They allege that their employer, a logistics company, failed to pay for off-the-clock work, failed to provide meal and rest periods, failed to endmnify them for business expenses and losses, and failed to pay wages upon separation.

The district court (S.D. Cal., Janis L. Sammartino, J.) initially denied the plaintiffs' motion for class certification because of concerns with the class definitions. On plaintiffs' renewed motion, plaintiffs asked the court to certify one class and twelve subclasses, e.g., "Subclass One: All Class Members who had 30 minutes wages deducted every shift by Defendants' automatic meal period time deduction (Wage Deduction Subclass)." Id. at 631. Defendant conceded that these class definitions "would allow the Court to determine [class] membership through objective criteria." The court thus found that the class was adequately defined. Id. at 632.

The Court found that the Rule 23(a) factors were present and that common legal and factual issues predominated regarding plaintiffs' claims and that class treatment was superior to individual actions.

On plaintiffs' off-the-clock claim, which arose from defendants' policy of auto-deducting 30 minutes each day, whether the employee took a meal period or not, the court held:
After reviewing these arguments, the Court finds that common issues predominate with respect to this subclass. The ultimate underlying factual issue is the existence of the thirty minute auto-deduct. If class members were not paid for time they actually worked, then Defendant is liable. And there is no question that Defendant deducted thirty minutes per day regardless of whether a break was taken. Thus, the common issues predominate over the individual issues on the question of liability. As to measure of damages, that will require more individualized inquiry. However, individualized questions going to damages do not preclude a finding that common questions predominate. Blackie, 524 F.2d at 905 (“The amount of damages is invariably an individual question and does not defeat class action treatment.”).
Id. at 635. Regarding plaintiffs' meal and rest period claims, the court held:

Given the facts, the Court finds that Plaintiffs have demonstrated that common issues of law and fact predominate. The first issue to deal with is the employer's obligation with respect to meal periods under California law. The legal uncertainty about this issue has been a recent source of heartburn for courts. Although it is presently before the California Supreme Court in Brinker Restaurant v. Superior Court, until that decision has issued this Court must proceed as best it can.

As such, the Court finds that California meal break law requires an employer to affirmatively act to make a meal period available where the employee are relieved of all duty. See Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 35 Cal.Rptr.3d 243, 252-53 (2006) (“[T]he defendant's obligation to provide the plaintiffs with an adequate meal period is not satisfied by assuming that the meal periods were taken, because employers have ‘an affirmative obligation to ensure that workers are actually relieved of all duty.’ ”); Brown v. Fed. Express Corp., 249 F.R.D. 580, 585 (C.D.Cal.2008) (“It is an employer's obligation to ensure that its employees are free from its control for thirty minutes.”). An illusory meal period, where the employer effectively prevents an employee from having an uninterrupted meal period, does not satisfy this requirement. Cicairos, 35 Cal.Rptr.3d at 252-53; Brown, 249 F.R.D. at 585. However, the employee is not required to use the provided meal period.

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. Plaintiffs also offer some evidence from an employee of Defendant stating that dispatchers did not schedule lunches.


In weighing the common and individual issues, the Court finds that common issues predominate. These claims center around defendant's policies in terms of whether meal and rest breaks were available. Although drivers' circumstances varied, they were all ultimately controlled by the same set of central policies, including the delivery schedules and auto-deduct system. These issues are sufficient to find predominance.

Id. at 638-639.

Regarding plaintiffs' expense reimbursement (LC 2802) claims, the court held:
The Court finds that Plaintiffs have shown that common issues predominate. The putative class members were engaged in a common type of job and performed common tasks. Given this commonality of employment obligation, an expense which is “necessary” for a class member to do his job would also be “necessary” for any other class member. And although the measure of damages is a clearly individual issue, such issues do not preclude a finding that common questions predominate. Blackie, 524 F.2d at 905. Therefore, because the underlying legal issues and many of the factual determinations are common to all class members, the Court finds that common issues predominate with respect to the reimbursement subclasses.
Id. at 639-640. Regarding plaintiffs' "derivative" claims (LC 226, LC 203, and B&P 17200), the court held:
With respect to these three subclasses, the Court finds that common issues predominate. As both sides agree, if Plaintiffs' other claims can be tried on a class wide basis, these claims are also ripe for class adjudication. Given the numerous common issues detailed above, the Court finds that common questions predominate with respect to these subclasses.
Id. at 640.

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