The plaintiffs worked in a variety of positions, from small, one officer night shifts to large commercial sites with multiple officers. 96% of the class members executed on-duty meal period agreements. Some class members were union members whose collective bargaining agreement (CBA) included provisions related to meal and rest periods.
In December, 2010, the trial court (Los Angeles Superior, Judge Carolyn B. Kuhl) granted the plaintiffs' motion for summary adjudication on the employer's liability for rest period violations. The Court described the employer's rest period policy as follows:
Defendant's policies make all rest breaks subject to interruption in case of an emergency or in case a guard is needed... Because a guard must be available for these situations, guards must keep their cell phones or pagers on. Defendant's position is that interruptions are so rare that the guards are effectively getting their breaks; that plaintiffs have presented no evidence that a guard who was interrupted could not restart their break; and that, because a guard is free to engage in non-work related activities during the rest period ... that the breaks are in compliance with the wage order and should not be considered on-duty time.Slip op. at 4. The court disagreed, focusing on the definition of "hours worked" in the IWC wage orders:
“Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
The court held: "The evidence demonstrates, and the Defendant does not deny, that the guards are always subject to the control of the Defendant during their 'breaks' because they remain on call." Slip op. at 5. The court then held that such time subject to the employer's control was compensable work time. Ibid., citing Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, Aguilar v. Assoc. for Retarded Children (1991) 234 Cal.App.3d 21. Because employees must be free of employer control during their rest periods (slip op. at 7), the court held that the employer had not authorized and permitted the required rest periods and granted summary judgment for the class.
The court then turned to the meal period claims. The vast majority of class members executed agreements to take on-duty meal periods. The plaintiff class argued that these agreements were void under the wage order because "the nature of the work of a security guard does not ever prevent a security guard from being given a meal break." Slip op. at 9. The employer argued the opposite, and that all agreements were valid.
The court held: "The question of whether the nature of the work prevented the employee from being relieved of all duty is a question of fact dependent on a variety of factors." Slip op. at 10. Because the court found that these factors would vary among the class members, individual issues would predominate. "These are issues that must be decided based on the facts relevant to staffing at a particular location, the remoteness of the location and possibly the nature of the security assignment at the location." Slip op. at 10-11. The court thus denied the cross-motions for summary adjudication, but granted the employer's motion for decertification.
On July 6, 2012, the trial court (Judge John Shepard Wiley Jr.) issued its decision confirming the earlier order granting summary judgment and again denying decertification on the rest period claims. The court held:
In general, [the employer] balks at the notion that the employer must relieve workers of all duties for the rest break to be is [sic] legally valid. Put simply, if you are on call, you are not on a break. That has been the law for many years.Slip op. at 1. The court rejected the employer's argument an award would violate its Due Process rights. California labor law, it held, "gave advance notice of the penalties for depriving workers of rest breaks." Slip op. at 2.
Class counsel has submitted a proposed judgment for $89.7 million in unpaid rest period compensation, interest, and waiting time penalties. A successful employee cannot recover attorney fees under Labor Code section 226.7, Kirby v. Immoos Fire Protection, Inc. (4/30/12) --- Cal.4th --- (discussed here), but I assume that counsel will move for attorney fees pursuant to Code of Civil Procedure section 1021.5.
The employer has vowed to appeal the decision. Assuming that it does so, I certainly will blog the appellate decision when it comes down.