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finding that a "lackluster response" to the nationwide FLSA collective action did not show "clear hostility" to state law certification
Summary of this case from McDonald v. Ricardo's on the Beach, Inc.Opinion
Case No. EDCV 08-25-VAP (OPx).
November 18, 2008
[Motion filed on September 29, 2008]
ORDER GRANTING MOTION FOR CLASS CERTIFICATION AS TO OVERTIME CLASS AND DENYING MOTION FOR CLASS CERTIFICATION AS TO REST BREAK CLASS
Plaintiff Kevin Carter's Motion for Class Certification ("Motion") came before the Court for hearing on November 17, 2008. After reviewing and considering all papers filed in support of, and in opposition to, the Motion the Court GRANTS the motion as to the overtime class and DENIES the motion as to the rest break class.
I. BACKGROUND
Plaintiff Kevin Carter ("Carter") filed a Complaint asserting nine claims under federal, California, and Oregon law. He now seeks certification under Fed.R.Civ.P. 23(b)(3) of his second and fifth claims.Plaintiff's second claim asserts violations of California Labor Code § 510 and Industrial Welfare Commission ("IWC") Wage Order No. 4, for failure to pay class members properly for work in excess of eight hours per day or forty hours per week. (Compl. ¶ 43.)
Plaintiff's fifth claim alleges violations of California Labor Code § 226.7, by failing to "authorize and permit" sales representatives to take two rest breaks of ten minutes each per four hours of work as required by Section 12 of IWC Wage Order No. 4. (Compl. ¶ 56.)
A. PROCEDURAL HISTORY
Plaintiff Carter, with others, filed a Complaint on January 10, 2008, on behalf of himself and all others similarly situated nationwide, naming Anderson Merchandisers, LP as Defendant and asserting nine claims stemming from wage and hour violations. Plaintiff asserts liability under the federal Fair Labor Standards Act ("FLSA"), the California Labor Code, California Business and Professions Code § 17200, and Oregon statutes. The Court conditionally certified a collective action under the FLSA on July 10, 2008, of a class of:
All persons who Defendant employs or has employed as a Sales Representative, who Defendant misclassified as exempt since June 1, 2005, and who were therefore denied compensation required by federal wage and hour laws.
This class is the "federal misclassification class." Members had 90 days to opt in. There were 147 possible class members in California and 32 have opted in. (Opp'n 5.)
On September 29, 2008, Plaintiff filed a motion for class certification, accompanied by supporting declarations, seeking certification of two classes of workers in California under the California Labor Code, rather than federal law:
1. The Overtime Class: "All current and former California sales representatives who Defendant classified as exempt between January 10, 2004 and August 27, 2006."
2. The Rest Break Class: "All current and former California sales representatives between January 10, 2004 and the present."
(Mot. 2.)
Defendant filed its Opposition ("Opp'n"), accompanied by supporting declarations, on October 20, 2008. Plaintiff filed his Reply with supporting documents on November 3, 2008.
No evidentiary objections were made by either side.
B. FACTS
1. Overview
Plaintiff and those similarly situated are or have been employed by Defendant as sales representatives in California during two time periods: January 2004 until August 2006 for the overtime class, and January 2004 to present for the rest break class. (Compl. ¶¶ 3, 5.) After August 2006, Defendant changed the duties of sales representatives; these changes are relevant only to the rest break class.
Defendant employed Plaintiff Carter as a sales representative from approximately August 2001 until October 2004 and again from February 2006 through August of that year. (Carter Decl. ¶ 2.) Thus, he was a sales representative for only part of the time period for which he seeks certification of the two classes — January 2004 through October 2004 and February 2006 through August 2006.
Defendant admits that corporate policy regarding classification and rest breaks remained the same during the relevant time periods. Defendant states that all California sales representatives were classified as exempt prior to August 2006 and that the rest break policy remained the same from 2003 through the present.
Since January 10, 2004, Defendant has employed 256 sales representatives in California and currently employs 73 in California. (Mot. 3, citing Declaration of Matthew H. Morgan ("Morgan Decl.") Ex. F, Defendant's Interrogatory Response Set 1 at 6; Opp'n 1.) Defendant's sales representatives currently work in 174 Wal-Mart stores in California. (Opp'n 2.) Sales representatives distribute Defendant's books, music, and videos to Wal-Mart stores. (Mot. 4, citing Halstead Dep. 27; Carter Decl. ¶ 9.) Wal-Mart operates two types of stores in California; both carry the three kinds of Anderson products distributed by California sales representatives. (Mot. 4, citing Halstead Dep. 27.) Defendant sends out daily instructions and information to sales representatives and regularly sends them Point of Purchase ("POP") displays for Wal-Mart stores.
This number differs from the number of possible California members in the federal misclassification class because the overtime and rest break classes cover different time periods than the federal misclassification class.
Plaintiff failed to comply with Local Rules 16-2.7 and 32-1 by citing to deposition transcripts without bracketing the text referenced in the deposition transcript excerpts. Future violations may result in the imposition of sanctions.
2. Facts regarding the proposed overtime class (January 2004-August 2006)
The parties agree California sales representatives were subject to a uniform classification policy during the period for which Plaintiff seeks certification of the overtime class. "Prior to August 27, 2006, sales representatives in California, with the exception of sales representative trainees, were classified as overtime exempt and were paid a salary plus commission under both the Federal and California outside salesperson exemptions and the Motor Carrier Act." (Opp'n 2.) During that time, Defendant's handbooks stated, "[o]vertime is expected from all full-time associates." (Morgan Decl. Ex. K at 4; Ex. L at 4.)
During the January 2004 through August 2006 period there were three levels of sales representatives; Plaintiff alleges all had the same job duties. (Mot. 4-5, citing Halstead Dep. 22-23; Carter Decl. ¶ 6; Morgan Decl. Ex. M, Declaration of Lillian Brooks ¶ 6, Declaration of Regina Conlee ¶ 6, Declaration of Lannis Fiamengo ¶ 6, Declaration of Julie Green ¶ 6, Declaration of Marily Grotz ¶ 6, Declaration of Andrea Lindsey ¶ 6, Declaration of Robert Lott ¶ 6, Declaration of Deborah Lynch ¶ 6, Declaration of Teresa Olivas ¶ 6, Declaration of William Rogers ¶ 6, Declaration of Tracie Sharp ¶ 6, Declaration of Steven Stewart ¶ 6, Declaration of Robert Winter ¶ 6, Declaration of Joyce Young ¶ 6 (the Brooks, Conlee, Lannis, Green, Grotz, Linsey, Lott, Lynch, Oliva, Rogers, Sharp, Stewart, Winter and Young declarations are collectively referred to as "Sales Representatives' Decls.") Plaintiff provides declarations of sales representatives who worked at all three levels who describe doing the same work. (Carter Decl. ¶ 6; Sales Representatives' Decls. ¶¶ 8-13.)
Defendant seeks to show sales representatives had different jobs because, for example, sales representatives at level 1 did not supervise anyone while sales representatives at levels 2 and 3 supervised other sales representatives. (See Opp'n 3.) Defendant also relies on demographic differences between the customer bases served by the stores and the variation in how much floor space each Wal-Mart manager was prone to cede to Defendant's sales representatives. (Opp'n 11.) Plaintiff contends their duties remained the same in all relevant aspects, despite differences in the representatives' level or the store type. (Mot. 4-5, citing Sales Representatives' Decls. ¶ 6.) Both parties agree sales representatives worked at home before and after their work in Wal-Mart stores.
Work at Home
Sales representatives did some work at home every day before and after they went to Wal-Mart stores. (Mot. 5, citing Halstead Dep at 27-28 and Sales Representatives' Decls. ¶¶ 11-13; Mot. 8, citing Sales Representatives' Decls. ¶ 13.) They used a handheld computer called an "Intermec" to clock in and out and to download and upload information to in order to perform their job duties, such as answering surveys, receiving daily information about sales priorities, processing returns, ordering products, and taking inventory. (Mot. 5, citing Halstead Dep. at 28-29, 46-47; Sales Representatives' Decls. ¶ 10.)
Since March 2008 (after the closure of the overtime class) sales representatives have clocked in using an apparently phone-based TCS system. (Mot. 6, citing Halstead Dep. 46.)
At home, sales representatives also received POP materials and packed them into their cars to deliver them to Wal-Mart stores. Plaintiff alleges sales representatives sorted through the materials at home. (Mot. 6, citing Sales Representatives' Decls. ¶ 11.) Plaintiff asserts from January 2004 through August 2006 sales representatives were never paid for time hauling POP materials. (Mot. 8.)
Defendant submitted declarations that some POP material is now shipped directly to Wal-Mart stores and that sales representatives now clock in at home before they perform their morning work. As these declarations do not address practices between January 2004 and August 2006, they are irrelevant to certification of the overtime class.
Work at Wal-Mart Stores
Declarations submitted by Plaintiff show sales representatives stocked shelves with books, music and videos according to "Plan-O-Grams," filled out surveys about stock at the stores, ordered products according to local demand, returned products, and cleaned shelves. (Mot. 6-7, citing Sales Representatives' Decls. ¶ 12.) Sales representatives were also responsible for POP displays and negotiating space in the stores for them. Defendant emphasizes the variation in the stock carried in various stores and the initiative sales representatives used to obtain space for Defendant's displays. (See, e.g. Curry Decl. ¶¶ 4-7 (selling different goods in different stores and obtaining space for displays).)
3. Facts regarding rest break class (January 2004-present)
From at least January 2004 to present, Defendant has had a uniform and consistent rest break policy in its Associate Handbooks. (Mot. 9, citing Exs. K, L to Morgan Decl; Opp'n 4.) According to Defendant, "The Daily Work Schedule policies in the three relevant versions of the Associate Handbook are substantially similar, and all state that employees are to take two paid 15-minute rest breaks each day." (Opp'n 4.) The policy in the handbooks states, "supervisors will determine break schedules." (Mot. 9, quoting Exs. K, L to Morgan Decl.; Declaration of Debbie Johnson in Opposition to Motion for Class Certification ("Johnson Decl.") Exs. A-C.) Although Defendant alleges this policy is followed in facilities where Defendant directly supervises other classes of workers, it is not followed in Wal-Mart stores where sales representatives work. (Opp'n 5; Johnson Decl. ¶¶ 5-6.) Where the putative class works, sales representatives' supervisors are only present one or two days per month and otherwise communicate with sales representatives by telephone. (Opp'n 5.) According to Defendant "sales representatives are responsible for scheduling and taking their own rest breaks." (Opp'n 5.)
Defendant has no system for recording rest breaks nor any way of knowing whether sales representatives are owed premia for being deprived of their breaks. (Mot. 9:20-22, citing Halstead Dep. 98.) Defendant submitted no evidence that anyone has ever been paid for a missed break or that there is any system to determine whether a premium is owed. Plaintiff did submit evidence that sales representatives did not take breaks and were not paid premia but failed to offer evidence of how Defendant discouraged or failed to authorize or permit sales representatives from taking rest breaks.
II. LEGAL STANDARD
Under Rule 23(a), in order to bring a class action, a plaintiff must demonstrate:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). In addition to these prerequisites, a plaintiff must satisfy one of the prongs of Rule 23(b) in order to maintain a class action. Where, as here, a plaintiff moves for class certification under Rule 23(b)(3), the plaintiff must prove that:
the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
Class actions have two primary purposes: to further judicial economy by avoiding multiple suits and to protect the rights of persons who "might not be able to present claims on an individual basis." Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal. 1996). The party seeking class certification bears the burden of demonstrating that it has met each of the four requirements of Rule 23(a) and at least one of the Rule 23(b) requirements. Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir. 2001).
The Court acts as a fiduciary for the absent class members, and "must conduct an independent and rigorous analysis of the moving party's claims to examine whether the requirements of Rule 23 are met." In re Paxil Litig., 212 F.R.D. 539, 543 (C.D. Cal. 2003) (quotations, citation omitted). In addition, to meet its burden the moving party "`must provide facts to satisfy these requirements; simply repeating the language of the rules . . . is insufficient.'" Id. (quoting Bates v. United Parcel Serv., 204 F.R.D. 440, 443 (N.D. Cal. 2001)) (ellipsis in original).
III. DISCUSSION
A. RULE 23(a)
Both classes satisfy the Fed.R.Civ.P. 23(a) factors.
1. Numerosity
In determining whether under Rule 23(a)(1), joinder of all members is "impracticable," courts have held the plaintiff need not show it would be "impossible" to join every class member.Haley, 169 F.R.D. at 647. Additionally, there is no specific number cut-off, as the peculiar facts of each case may be examined. Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 594 (E.D. Cal. 1999). Courts have not required evidence of specific class size or identity of class members to satisfy the requirements of Rule 23(a)(1). Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
Defendant does not argue that numerosity does not exist here, and hence concedes Plaintiff has established this criterion. (See Opp'n 7.) Both the overtime and rest break classes meet the numerosity requirement. Plaintiff alleges both classes have at least 256 members while Defendant asserts the overtime class contains 117 sales representatives and the rest break class 338 sales representatives. (Mot. 12; Johnson Decl. ¶ 3).
2. Commonality
Courts have construed Rule 23(a)(2)'s commonality requirement permissively. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). As the Ninth Circuit has explained:
All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.Id.
Additionally, another Court in this District has stated that "the commonality requirement is interpreted to require very little." Paxil, 21 F.R.D. at 549. "[F]or the commonality requirement to be met, there must only be one single issue common to the proposed class." Haley, 169 F.R.D. at 648.
a. Overtime class
Commonality is met as to the overtime class. Plaintiff produced handbooks from the relevant period which state: "Overtime is expected from all full-time associates." (Morgan Decl. Ex. K at 4, Ex. J. at 5.) More importantly, Plaintiff also produced declarations from 15 sales representatives who regularly worked over 40 hours between 2004 and 2006. (Carter Decl. ¶ 4; Sales Representatives' Decls. ¶ 4.) As Defendant admits, all sales representatives in California were uniformly classified as non-exempt at that time based on a common legal theory: "Prior to August 27, 2006 sales representatives in California, with the exception of sales representative trainees, were classified as overtime exempt and were paid a salary plus commission under both the Federal and California outside salesperson exemptions and the Motor Carrier Act." (Opp'n 2:8-11.) The frequent work over forty hours and the common classification present common factual issues; the correctness of the uniform classification raises a common legal question.
b. Rest break class
Plaintiff satisfies the commonality requirement for the rest break class. The same employee handbooks governed all sales representatives, and established a policy that remained substantially similar through three editions: supervisors were to set sales representatives' breaks. (Opp'n 4; Reply 5.) Both sides agree supervisors did not schedule rest breaks. (Reply 5; Opp'n 5.) Plaintiff adduced evidence sales representatives do not remember ever taking rest breaks, as well as evidence Defendant has no method of paying an employee for a missed break. (Reply 3:20-23, citing Halstead Dep. at 61-62). Defendant seeks to impeach Plaintiff Carter's declaration that he does not recall taking rest breaks with his deposition testimony, (Opp'n 9:3-9), but the deposition testimony cited refers not to rest breaks, but meal breaks. Thus, this attempt at impeachment fails.
Defendant also adduced declarations of employees who recalled taking rest breaks. Some of these declarants, however, admit there were times they did not take rest breaks; furthermore, none assert they were paid for those missed breaks. In any event, this conflicting evidence does not prevent a finding of commonality. At the class certification stage, the Court undertakes a rigorous analysis of the evidence presented, but does not weigh the ultimate merits of the case in a way that would usurp the jury's role. See Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1177-78 (9th Cir. 2007.)
3. Typicality
To gauge typicality, a "court does not need to find that the claims of the purported class representative are identical to the claims of the other class members." Haley, 169 F.R.D. at 649. The Ninth Circuit in Hanlon further wrote that "[u]nder the rule's permissive standards, representative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." 150 F.3d at 1020. Additionally, the class representatives "must be able to pursue [their] claims under the same legal or remedial theories as the unrepresented class members." Paxil, 212 F.R.D. at 549.
While commonality requires only one unifying factual or legal question, typicality requires "`that the claims of the class representatives be typical of those of the class'" and is achieved "`when each member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.'" Paxil, 212 F.R.D. at 550 (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)).
a. Overtime Class
Plaintiff satisfies the typicality requirement for the overtime class. Plaintiff, like other California sales representatives, was classified as exempt when he worked as a sales representative during the January 2004 through August 2006 period. (Mot. 15.) The employee handbook provision, stating an expectation of overtime work, bound Plaintiff and all other sales representatives. (Morgan Decl. Exs. K, L.)
The class includes sales representatives at levels 1, 2, and 3. Plaintiff Carter worked as a level 1, 2, and 3 sales representative and stated, "[r]egardless of level, my job duties as a sales representative in California remained consistent throughout my employment. . . ." (Carter Decl. ¶ 6.) Throughout that period, he worked more than 40 hours a week and did not receive compensation for it. (Carter Decl. ¶ 4.) Plaintiff produced evidence from other sales representatives, stating they experienced these conditions. (Carter Decl. ¶¶ 8-13; Sales Representatives' Decls. ¶¶ 4-5, 8-13.) Plaintiff Carter did similar tasks and was classified in the same way as other sales representatives; hence, his claim is typical, as it arises from the same course of events. See Paxil, 212 F.R.D. at 550.
b. Rest break class
The typicality requirement is met for the rest break class. Plaintiff Carter, like all sales representatives, rarely was supervised directly. Like other sales representatives, Plaintiff Carter worked under a uniform policy where supervisors had the responsibility to set rest breaks, and a uniform practice that they did not do so.
Defendant seeks to defeat typicality by arguing Plaintiff Carter knew of the rest break policy. Knowledge of the policy set out in the employee handbook is relevant only if informing employees about the rest break policy is sufficient, standing alone, to satisfy the obligation created by the IWC wage orders that employers "authorize and permit" rest breaks. (See Compl. ¶ 54, citing IWC Wage Order 4.) This common legal question tends to support rather than undermine typicality. Accordingly, Plaintiff has established typicality for the rest break class.
4. Adequacy of representation
Traditionally, courts have engaged in a two-part analysis to determine if the plaintiffs have met the requirements of Rule 23(a)(4): (1) the class representatives must not have interests antagonistic to the unnamed class members and (2) the representatives must be able to prosecute the action "vigorously through qualified counsel." Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978).
a. Named plaintiff
Plaintiff Carter is an adequate class representative because he has participated in this litigation by soliciting other class members, helping his counsel assess documents produced by Defendant, and responding to written discovery requests. (Reply 7; Carter Decl. ¶ 14.)
Defendant asserts Plaintiff Carter is not an adequate representative because he was not a sales representative for the entire January 2004 — August 2006 period. (Opp'n 13.) Defendant tries to cast this as creating some sort of conflict with the class, but neither cites authority for this proposition nor provides evidence of changes that occurred during the time Carter did not work as a sales representative. The Court finds he can adequately represent the class.
b. Class counsel
Adequate representation "`depends on the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.'" Paxil, 212 F.R.D. at 550 (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994). Courts now determine the adequacy of counsel under Rule 23(g). See, e.g., Hill v. Merrill Gardens, L.L.C., 2005 WL 2465250, *3 (N.D. Ind. 2005).
Rule 23(g) provides,
a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
(1) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
Plaintiff offers proof of the adequacy of his counsel. Defendant offers no opposition to the adequacy of class counsel and hence concedes this criteria. (Opp'n 13-14). Plaintiff avers his counsel consists of a qualified law firm with extensive experience in class action and wage and hour litigation. (Mot. at 16.) Counsel's firm employs 19 lawyers and has represented employees exclusively for the past 15 years. (Id. (citing Declaration of Donald H. Nichols Decl. ¶ 3).) It currently is counsel of record on over 60 class or collective action cases, most of which are wage and hour cases. (Id.) Plaintiff's lead counsel has practiced employment law for 25 years. (Id.)
Plaintiff has demonstrated sufficiently that his counsel will represent the proposed classes adequately. Counsel has identified and investigated the claims in this action, has extensive experience handling class actions similar to this one, has demonstrated knowledge of the applicable law, and has adequate resources to represent the proposed classes.
For the above reasons, the requirements of Fed.R.Civ.P. 23(a) are met by both the overtime and rest break classes.
B. Rule 23(b)(3)
In addition to meeting the prerequisites for class certification under Rule 23(a), a plaintiff must satisfy one of the prongs of Rule 23(b) in order to maintain a class action. Where, as here, a plaintiff moves for class certification under Rule 23(b)(3), the plaintiff must prove that:
the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
1. Overtime class
Common issues predominate regarding the overtime class and a class action is the superior way to resolve the dispute. All California sales representatives were subject to uniform policies and expectations. They were classified as exempt from overtime from January 2004 until August 2006 and bound by handbooks stating "Overtime is expected from all full-time associates." (Mot. 18, citing Morgan Decl. Ex. K at 4, Ex. L at 5.) Plaintiff has produced evidence they all had the same job responsibilities. Some worked at all three levels and can testify their job responsibilities remained the same. (Carter Decl. ¶ 6; Declaration of Joyce Young ¶ 6.)
Defendant asserts several arguments against a finding of predominance and superiority as to the overtime class. Defendant seeks to establish that sales representatives' work varied substantially depending on the customer base and the manager of a particular Wal-Mart store and that therefore application of the outside salesperson exemption must be determined on a case-by-case basis. (Opp'n 23:22-28.) The declarations submitted by Defendant to support this argument are unconvincing. The 11 submitted by those who are not District Managers do not address their job duties during the 2004 to 2006 period. The Court does not assume the duties remained constant, as five of the declarations are submitted by workers who have now achieved the rank of level 4 sales representative, a category that did not exist from January 2004 through August 2006.
Second, the declarations undermine Defendant's attempt to show the great discretion exercised by sales representatives: it appears sales representatives began their tasks with a model stock or automatically generated orders for their stores. (See Declaration of Jim McCollum ¶ 9; Declaration of Gloria Miller ¶ 9; Declaration of Brenda Mize ("Mize Decl.") ¶ 6; Declaration of Linda O'Connor ¶ 9.) Although it is not clear when that practice took place, it is consistent with the information submitted by Plaintiff that described centralized distribution of information about orders and sales priorities from January 2004 through August 2006. If Defendant wishes to show that various exemptions applied to sales representatives, they bear the burden to do so. (Reply 13:21-14:2.) Defendant has not carried that burden here. For example, although Defendant would like to show sales representatives spent most of their time on non-menial tasks, only one of the declarations offered by Defendant, that of Mize, provides an estimate of how much time was spent on various tasks. (Mize Decl. ¶ 4.)
Third, Defendant argues the lackluster response by sales representatives to the nationwide FLSA collective action notice shows "clear hostility" to a state class certification. (Opp'n 22.) Defendant produced declarations of employees who chose not to join that collective action because they believe that they are being adequately compensated. Among the declarations submitted by Defendant, the statements of sales representatives at levels 3 and 4 are better represented than those at levels 1 and 2. Furthermore, the concerns of these `objectors' are being raised by Defendant, not by the employees on their own initiative.
At the hearing on this Motion, defense counsel suggested this was because of the passage of two years since the closure of the overtime class.
Fourth, Defendant relies on Leuthold v. Destination America, Inc., 224 F.R.D. 462 (N.D. Cal. 2004) to suggest the response rate to the FLSA collective action could raise jurisdictional concerns because state law claims would dominate over federal claims. (Opp'n 22-23.) The Court declines to follow this line of argument. The FLSA was not designed to preempt more protective state laws. Thorpe v. Abbot Laboratories, Inc., 534 F. Supp. 2d 1120, 1124 (N.D. Cal. 2008).
Finally, Plaintiff satisfies the 23(b)(3)(A)-(D) factors regarding the overtime class. First, sales representatives appear to have been relatively modest earners, earning about $36,000 in 2006; thus, they have an interest in centralized adjudication of their wage-and-hour claims. (Mot. 21.) Second, neither party points to other suits regarding these workers' claims. One of the declarations offered by Defendant, originally offered in opposition to the motion for conditional certification, mentions a 2002 case captioned Wiberg v. Anderson regarding Defendant's wage and hour practices but Defendant does not discuss that case in its Opposition now before the Court. (See Declaration of Debbie Johnson dated June 13 2006 ("June 13 Johnson Decl."), Ex. B to Declaration of Daniel J. Coyle.) Third, it is desirable to continue litigation of these workers' claims before this Court, as they all spring from a common set of circumstances and are governed by a single set of state laws. Fourth, as class actions go, management difficulties are unlikely regarding a class of less than 300 regarding violations of a single state's laws.
For the reasons above, the Court GRANTS Plaintiff's motion for certification of the overtime class.
2. Rest break class
Certification is not warranted for the rest break class because a class action is not the superior method by which to adjudicate these claims: the evidence offered by Plaintiff does not suggest Defendant's actions violated the law.
The same picture emerges from the 15 declarations submitted by Plaintiff and the 17 declarations submitted by Defendant: sales representatives were subject to a uniform written corporate policy that sales representatives were to take breaks as determined by their supervisors; supervisors did not actually set breaks; sales representatives were not directly supervised most of the time. Plaintiff offered testimony of a corporate representative that Defendant does not know whether sales representatives take their breaks and had no way of knowing when a sales representative needed to be paid for a denied break. (Halstead Dep. 98:9-99:4.)
Plaintiff submitted declarations from 15 sales representatives who do not remember taking rest breaks while Defendant submitted declarations from sales representatives who do remember taking rest breaks. This suggests some took breaks but some did not. The Court might be inclined to certify the class if the declarations submitted by Plaintiff suggested some causal mechanism between any action, policy, or practice of Defendant and sales representatives' missed rest breaks. In Cicairos v. Summit Logistics, Inc., on which Plaintiff relies, the plaintiff truck drivers were required to continually log their time and their activities with a computer system that provided no code to use for rest breaks; "[s]ome drivers skipped their rest breaks because of this policy." 133 Cal. App. 4th 949, 956 (2005). In addition, the employer placed the drivers under time pressure.Id. Here, in contrast, Plaintiff, like the other 14 sales representatives whose declarations were submitted simply states "[a]s a sales representative, I do not recall ever taking an uninterrupted ten minute break. . . . My supervisor did not determine my rest break schedule." (Carter Decl. ¶ 7; Sales Representatives' Decls. ¶ 7.) Plaintiff does not point to any aspect of Defendant's operations by which they failed to provide rest breaks nor even allege he felt rushed or pressed for time. Contra Cicairos, 133 Cal. App. 4th at 956.
Plaintiff has the burden of demonstrating certification is warranted. Plaintiff's evidence shows that Defendant broke company policy by not scheduling breaks but fails to show how that violated California's Labor Code. All the declarations submitted by Plaintiff state "[m]y supervisor did not determine my rest break schedule;" in other words, Plaintiff does not allege Defendant took any action, one way or the other, to determine the schedule. These declarations might support a claim if Cicairos established that under California law the employer had an obligation to take affirmative steps to ensure rest breaks were taken. The Cicairos court stated in a discussion of meal periods that "employers have `an affirmative obligation to ensure that workers are actually relieved of all duty'" but gave no standard for judging employer responsibility regarding rest breaks. Cicairos, 133 Cal. App. 4th at 962. The Cicairos court concluded summary judgment was not proper for defendant because defendant did not prove it supplied plaintiffs with rest periods. Id. at 963.
Defendant relies on California Appeal Court case Brinker v. Superior Court, 165 Cal. App. 4th 25 (2008), now under review by the California Supreme Court, and hence temporarily de-published.
The Court declines to exercise its discretion to certify a class based solely on rest breaks when Plaintiff cannot point to any authority clarifying the nature of the employer's duty. Indeed, at the hearing on this matter, Defendant's counsel directed the Court to Brinkley v. Public Storage, Inc., 2008 WL 4716800 (Cal.App. 2008), an opinion issued October 28, 2008. InBrinkley, the California Court of Appeal considered a former employee's motion to certify a class of workers who were not provided rest breaks and meal breaks. The Court declined to find that California law requires employers to "ensure" workers took their rest periods and needed only make these breaks available.Id. at *1.
For these reasons, a class action is not superior and certification of a rest break class is not warranted.