Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. BC360748, John P. Shook, Judge.
Westrup Klick, R. Duane Westrup, Lawrence R. Cagney, Jennifer L. Connor for Plaintiffs and Appellants.
Silver & Freedman, Andrew B. Kaplan, Jeffrey W. Mayes for Defendant and Respondent.
ARMSTRONG, J.
Under the Labor Code and the California Code of Regulations, employees who work more than five hours a day are entitled to a thirty minute duty-free meal period. Employees are also entitled to a ten minute rest period for each four hours worked. (Lab. Code, § 512, subd (a); Cal.Code Regs., tit. 8, § 11040, subd. 12(A).) If an employer fails to provide an employee with such a meal or rest period, "the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided." (Lab. Code, § 226.7, subd. (b).)
Labor Code section 512, subdivision (a) provides that "An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes...." The Labor Code also provides that "No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission." (Lab. Code, § 226.7, subd. (a).) The Industrial Welfare Commission has mandated rest periods: "Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof." (Cal. Code Regs., tit. 8, § 11040, subd. 12(A).)
Plaintiffs and appellants Jemille McElroy and Aziza Hunter, on behalf of themselves and all others similarly situated, filed suit against their employer, the Institute for Applied Behavior Analysis ("IABA"), bringing cause of action for violations of those meal and rest period requirements. This appeal is from an order denying their motion for class certification. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) We affirm.
The complaint also brought causes of action for failure to pay overtime compensation (Lab. Code, § 1194, subd. (a)) and for failure to provide itemized statements (Lab. Code, § 226), and alleged that the Labor Code violations also constituted violations of Business and Professions Code section 17200. Plaintiffs seem to have abandoned the first two claims, and make no argument that the Business and Professions Code section 17200 contention is relevant to the issues before us.
Background
The IABA provides services to people who have disabilities such as autism, physical disabilities, and developmental problems. Plaintiffs worked in the IABA's STEP (Services to Employ People) program as Employment Specialists. Employment Specialists worked 35 hours a week, made up of 6 hours a day of direct service and about 5 hours a week of indirect service. In direct service, the Employment Specialist accompanies the disabled person ("consumer," in IABA lingo) to the consumer's job, or to a movie or a supermarket, or some similar place, or will work with the consumer in that person's home. Indirect service is paperwork, staff meetings, training, and so on.
The right to a meal period may be waived by mutual consent of the employer and employee (Lab. Code, § 512, subd. (a)), and IABA required each Employment Specialist to sign a meal period waiver which read, "I understand that the nature of my job may entail constant personal supervision of the consumer(s) who will be assigned to me. Because of this I realize that it may not be possible for me to have a lunch period that is free from all duties. I understand that since this meal period may be an on duty meal period, it will be considered as time worked and I will receive my regular rate of pay for this lunch period. I further understand that, with two weeks notice to my manager, I can revoke this agreement."
Plaintiffs' theory of this case was that the waiver was invalid because it included an unauthorized restriction on revocation; that consumers required constant supervision, so that Employment Specialists and Senior Employment Specialists could not timely take the meal and rest periods mandated by statute; that making meal and rest periods available after the six hours of direct service did not comply with the law; and that Employment Specialists and Senior Employment Specialists were not paid for the missed meal and rest periods under Labor Code section 226.7, subdivision (b).
Given the trial court's evidentiary rulings (discussed ante) plaintiffs had no evidence on the duties of Senior Employment Specialists, but IABA's evidence tells us that they sometimes stepped in for Employment Specialists and provided direct service.
The Motion for Class Certification
Plaintiffs sought to represent all current Employment Specialists and Senior Employment Specialists employed by IABA, and all people who had been so employed from October 23, 2002, through date of trial.
In order to have a class certified on their theories, plaintiffs were required to prove the existence of a sufficiently numerous, ascertainable class, with a well-defined community of interest, and that certification would provide substantial benefits to litigants and the courts. (In re Tobacco II Cases (2009) 46 Cal.4th 298, 313.) As part of the "community of interest" requirement, plaintiffs bore the burden of showing, inter alia, that common questions of law or fact predominated. (Sav-on Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) The "ultimate question" is whether the issues which could be jointly tried are so numerous or substantial that maintenance of a class action would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1105-1106.)
"Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) If the ruling is supported by substantial evidence, it will be affirmed unless the trial court used improper criteria or made erroneous legal assumptions. (Id. at pp. 435-436.)
In support of their motion for class certification, plaintiffs submitted various IABA materials, including a training manual, employee handbook, and materials about the STEP program; excerpts from their own depositions; and other documents.
Plaintiffs also submitted printouts from IABA's website, the results of a survey plaintiffs' counsel sent to putative class members, excerpts from the depositions of two IABA executives concerning the STEP program, meal period waivers, and the duties of Senior Employment Specialists, and declarations from 9 former Employment Specialists or Senior Employment Specialists to the effect that their duties typically prevented them from taking duty-free rest and lunch breaks. IABA objected to this evidence. Plaintiffs did not file any opposition to the objections. At the hearing on the motion, IABA requested a ruling. The trial court noted that it had reviewed the objections and that no opposition had been filed, and, without opposition from plaintiffs, sustained the objections in their entirety. Plaintiffs nonetheless cite this evidence in support of their arguments on appeal, contending (in a footnote in their brief) that the trial court sustained the objections "in a blanket fashion, without analysis and apparently based solely on the mistaken belief that Plaintiff was required to submit written responses to IABA's objections. For those reasons, Plaintiff contends that the trial court's ruling on all of IABA's objections compounded its substantive errors." We agree with IABA that plaintiffs' failure to offer any argument on the evidentiary rulings in the trial court bars them from challenging those rulings on appeal. Even if that were not so, the quoted contention is insufficient to raise the issue on appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562.)
Their evidence was that in October 2007, IABA employed 83 Employment Specialists and 14 Senior Employment Specialists. Since January of 2002, there had been 312 Employment Specialists and 36 Senior Employment Specialists.
This complaint was filed in October 2006, and the information seems to have been obtained in discovery.
The IABA employee handbook provided that "Many employees' job duties, such as direct support positions, require them to be on-duty at all times, in which case they may have an on-duty meal period during their shift. If employees take mealtime and break periods with persons served, this time is considered part of working time. [¶] Employees who must remain on-duty during meal periods will be required to sign a separate agreement stating their agreement and understanding that the meal period will be paid for and considered as time worked." All direct service employees were required to sign the meal period waiver.
In her deposition, taken in August 2008, McElroy testified that she had been working as an Employment Specialist for five years, that she had never had a duty-free meal period, that she knew of two other Employment Specialists (Hunter, and someone named Gwen) who had never had a duty-free meal period, that she knew of Employment Specialists who had never had break periods, that IABA insisted that it was not safe for an Employment Specialist to leave a consumer alone, and that IABA was correct in that assessment.
In her deposition, Hunter testified that she had worked for IABA from January 9, 2006, until sometime in August 2006, and that she had never had a lunch break without consumers, and that she had never had any rest breaks, other than bathroom breaks, away from consumers.
Plaintiffs also presented evidence that in May 2006, Hunter received a Warning Notice for leaving a consumer unattended and stating that "It is a violation of IABA policy for [Hunter] to leave her consumer(s) unattended for any reason w/out notifying or getting permission from management."
IABA presented evidence, too, including the declarations of 13 Employment Specialists, former Employment Specialists, Senior Employment Specialists, or managers or supervisors. The declarations were to the effect that employees knew of the right to take meal and rest periods and had voluntarily executed the waiver. Different consumers required different levels of supervision, so that some direct service employees had plenty of time to take rest breaks during the day. Some did not. Employment Specialists typically performed direct service for about six hours a day. Some took breaks between direct service and indirect service, which could for the most part be performed anywhere. Some, who wanted to finish the work day earlier, did not take breaks. According to IABA managers, most of the time it was impossible for an Employment Specialist or Senior Employment Specialist to take a 30 minute off-duty lunch period. The managers also declared that no Employment Specialist or Senior Employment Specialist had ever sought to revoke the meal period waiver.
The trial court found insufficient evidence of common questions of law or fact, and that plaintiffs had failed to identify persons sufficient to constitute the class. We find substantial evidence for the trial court ruling, and no trace of improper criteria or erroneous legal assumptions, and thus affirm.
Discussion
Plaintiffs' evidence was, at best, that a few direct service employees had been unable to take rest periods. This is clearly not enough to justify class certification on any issue concerning rest periods.
The evidence on meal periods is different. IABA's employee handbook, the waiver form, and IABA's evidence at the class certification motion establish that many direct service employees could not take meal breaks. All direct service employees were asked to waive the right to meal periods, and did so, but plaintiffs argue that the waiver was contrary to the law and thus invalid, and that class litigation is the best way to litigate that issue.
Plaintiffs' legal theory on the waiver is that the limit on revocation (two weeks' notice) violates California Code of Regulations, title 8, section 11040, subdivision 11(A). That regulation provides, inter alia, that "An 'on duty' meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time."
Despite the apparent contradiction between the IABA waiver and the regulation, we cannot see that the trial court abused its discretion in denying class certification on this issue. Even if the waiver is improper under the law, plaintiffs did not present evidence that a class of plaintiffs was damaged by the waiver. That is, there was no evidence that any employee had sought to be relieved of the waiver so that he or she could take a meal period (or receive additional pay) and was prevented from doing so because of the notice requirement, or even that the inclusion of the notice requirement deterred any employee from seeking to revoke the waiver.
Instead, IABA presented evidence that no employee had sought to be relieved from the waiver. At the hearing on the class certification motion, on inquiry from the court, plaintiffs represented that they had no evidence to the contrary.
We thus see no evidence that maintenance of a class action on the issue of meal periods or the meal period waiver would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1105-1106.)
Disposition
The judgment is affirmed. Respondent to recover costs on appeal. The writ of supersedeas is dismissed.
We concur: TURNER, P. J., MOSK, J.