Faulkinbury v. Boyd & Associates: On Remand After Brinker, Court of Appeal Reverses Denial of Certification In Wage and Hour Action

In Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal. App. 4th 1363 (discussed here), the Court of Appeal affirmed in part and reversed in part a trial court order denying certification of claims for meal period, rest period, and off-the-clock violations. The California Supreme Court granted review and held pending Brinker, then remanded to the Court of Appeal for reconsideration.

On May 10, the Court of Appeal changed its earlier position and reversed in full the trial court's order denying class certification.

First, the plaintiffs alleged that the employer had a unlawful, uniform policy of requiring employees to sign an on-duty meal period agreement and take on-duty meal periods, and the Court held that this claim was amenable to class treatment. Slip op. at 12-16. Although the Court did not determine whether the alleged policy was lawful or not, it held: "The lawfulness of Boyd's policy of requiring all security guard employees to sign the on-duty meal break agreement can be determined on a classwide basis." Slip op. at 13. The Court explained:

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.” 

Slip op. at 15-16, citing Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301 (discussed here); Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th 1129, 1150-1151 (discussed here and here).  

Second, the plaintiffs alleged that the employer had no policy to provide rest periods and required the putative class members to remain at their posts at all times. The Court held that this claim also was amenable to class treatment. Slip op. at 16-19. Citing Brinker and Bradley, the Court held that the employer's evidence that some employees received rest periods could not defeat certification:

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.  

Slip op. at 19. 

Third, the plaintiffs alleged that the employer had a uniform practice of excluding certain amounts from its calculation of overtime compensation. The Court held that this claim also was amenable to class treatment, even if eligibility for recovery would have to be shown on an individual basis. Slip op. at 20. 

Finally, the Court held that all three subclasses satisfied the ascertainability requirement. 

The trial court found the Meal Break Class and the Rest Break Class were not ascertainable ... because membership depended on individual questions whether the nature of the work at each post prevented an employee from being relieved of all duty in order to take a meal or rest break. As we have explained, those questions do not prevent certification of the classes. 

Slip op. at 22. 

Faulkinbury v. Boyd & Associates is available here.  

I assume that the employer and/or amici will petition the Supreme Court for review and/or depublication. On March 20, the Supreme Court denied review in Bradley, and I would be surprised if it reached a different result in this case.