JOHNSON, J. —
Valerie Alberts and others (hereafter plaintiffs), formerly employed as members of the nursing staff at two acute care psychiatric hospitals owned and operated by Aurora Behavioral Health Care (Aurora), filed the instant wage and hour lawsuit alleging, on behalf of themselves and a class of similarly situated individuals, that Aurora's uniform practices and de facto policies routinely denied nursing staff employees meal and rest periods required by California law. Plaintiffs allege Aurora intentionally understaffed its hospitals while simultaneously requiring nursing staff to remain at their posts and monitoring patients unless relieved, resulting in class members being denied meal and rest breaks (and failing to receive additional compensation required by California law). Plaintiffs further allege that Aurora required nursing staff members to complete outstanding assignments before leaving at the end of a shift, but actively discouraged or denied requests for overtime compensation and instructed employees to finish outstanding tasks off the clock. Plaintiffs proposed five subclasses: the meal break subclass, the rest break subclass, the overtime subclass, and two derivative subclasses for waiting time penalties owed and inaccurate wage statements.
The trial court denied plaintiffs' motion for class certification, finding a lack of "commonality" among the subclasses. We conclude the court relied on improper criteria and erroneous legal assumptions in denying certification. However, while we believe that plaintiffs' theory of liability presents a common question well suited for class treatment, it is unclear what effect, if any, individual issues, such as damages, will have on the manageability of the case. As our Supreme Court has cautioned, "Trial courts must pay careful attention to manageability when deciding whether to certify a class action. In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class. If the court makes a reasoned, informed decision about manageability at the certification stage, the litigants can plan accordingly and the court will have less need to intervene later to control the proceedings." (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 29 [172 Cal.Rptr.3d 371, 325 P.3d 916].) Here, the parties and the trial court focused almost exclusively on the existence of common issues, to the exclusion of the issue of manageability. Accordingly, we reverse and remand the matter for further consideration consistent with our holding.
Defendants and respondents Aurora Las Encinas Hospital (Las Encinas) and Aurora Charter Oak Hospital (Charter Oak) are psychiatric hospitals
This action was initiated in August 2009. The operative fourth amended complaint alleges that Valerie Alberts, Rudolph Breilein, Robin Motola, Cyndi Lane, Shelby Edison and Aviance Contreras are members of a putative class of current and former nonexempt employees of the Hospital who, from August 6, 2005, to the present (class period), provided patient care and held the following positions on the Hospital's nursing staff: registered nurse (RN), licensed vocational nurse (LVN), licensed psychiatric technician (LPT), and mental health worker (also known as behavior health specialist or psychiatric assistant; MHW). The complaint alleges unpaid overtime, failure to provide meal and rest periods, failure to pay waiting time penalties, and failure to provide accurate itemized statements (Lab. Code,
Plaintiffs sought class certification on behalf of approximately 1,053 putative class members. Plaintiffs proposed that the class be split into two primary subclasses, divided between individuals employed by Las Encinas and by Charter Oak. Those subclasses would in turn be divided into six additional subclasses, five of which are at issue here: (1) a rest break subclass, (2) a meal break subclass, (3) an overtime subclass, (4) a waiting time subclass and (5) an itemized statement subclass.
In support of the class certification motion, plaintiffs submitted declarations by plaintiffs' counsel, documentation and declarations from 25 (mostly) former employees of Las Encinas and Charter Oak, and excerpts from the depositions of Cheryl Cook, director of nursing (DON) at Las Encinas and the designated most knowledgeable witness regarding the Hospital policies at issue, Evaldo Casas, Las Encinas's former staffing coordinator, and Brenda Nocon, Charter Oak's DON. Plaintiffs also submitted two expert witness declarations. The first, from Dr. Brian Kriegler reflected his (1) development of a sampling design to select representative samples of both potential class members and timekeeping and payroll data for Las Encinas, (2) analysis of Hospital timekeeping and payroll data for sample class members, and (3)
The Hospital opposed certification. The Hospital argued that it maintained lawful meal and rest break policies, that employees were paid for all hours worked, and that plaintiffs had failed to proffer substantial credible evidence that an informal policy of failing to provide employees meal and rest breaks or to perform off-the-clock work could be proved on a class-wide basis with common evidence. The Hospital asserted that, absent substantial evidence that its allegedly unlawful practices and procedures were susceptible to class-wide proof, liability determinations necessarily hinged on individual determinations as to why meal or rest breaks were missed, and whether the Hospital knew or should have known an employee was working off the clock.
In support of its opposition, the Hospital presented, among other things, documentation and the declarations of 34 (mostly) current nursing staff employees, as well as Charter Oak's chief operating officer, DON Cook and Hospital's counsel, with attached excerpts from the depositions of Rounds, DON Cook, Casas, Kriegler and certain members of the putative class. The Hospital also submitted a declaration by its expert statistician Robert Crandall, containing his assessment of Kriegler's report, and an analysis of "whether the available data is consistent with the hypothesis that systematic practices resulted in employees systematically not being provided meal breaks." Finally, the Hospital lodged numerous evidentiary objections to (1) plaintiffs' and other witnesses' declarations, (2) the declaration of one of plaintiffs' attorneys, (3) and the Kriegler and Round declarations.
Plaintiffs, in turn, filed a reply brief, an additional declaration by counsel, with documents, discovery materials and excerpts from numerous depositions attached, and an extensive supplemental declaration by Kriegler. Plaintiffs also responded to the Hospital's evidentiary objections, and lodged objections of their own against the Hospital's witness and employee declarations and the Crandall declaration. Both sides submitted briefs addressing then-recent changes in the law regarding class certification. The Hospital also filed responses to plaintiffs' evidentiary objections, lodged additional objections of its own and moved to strike Kriegler's supplemental declaration and portions of the reply brief.
On April 10, 2013, following oral argument, the trial court adopted its tentative ruling and denied class certification on the ground that each
The second factor, the "community of interest" factor, is comprised of three subfactors: "`"(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class."'" (Brinker, supra, 53 Cal.4th at p. 1021.) In deciding whether the common questions "predominate," courts must do three things: "identify the common and individual issues"; "consider the manageability of those issues"; and "taking into account the available management tools, weigh the common against the individual issues to determine which of them predominate." (Dunbar v. Albertson's, Inc. (2006) 141 Cal.App.4th 1422, 1432 [47 Cal.Rptr.3d 83].)
Class certification "`is "essentially a procedural [question] that does not ask whether an action is legally or factually meritorious."'" (Brinker, supra,
A ruling on class certification is reviewed for abuse of discretion. (Brinker, supra, 53 Cal.4th at p. 1022; Sav-On, supra, 34 Cal.4th at p. 326.) "`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.'" (Sav-On, at p. 326.) "`A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions.'" (Brinker, at p. 1022; see Linder, supra, 23 Cal.4th at pp. 435-436.)
Plaintiffs sought certification of three subclasses of claims: violation of meal period provisions, violation of rest period provisions and failure to pay compensation for missed breaks and overtime.
Charter Oak and Las Encinas provide inpatient, partial hospitalization and intensive outpatient programs to treat adults and adolescents with psychiatric illnesses and chemical dependency problems. Each facility is divided into units according to the type of patient and degree of intensity of treatment required. The Hospital is licensed and subject to inspection by the State of California, State Department of Public Health. Residential treatment is licensed and certified by the State Department of Health Care Services. Staffing for acute care facilities is governed by federal and state regulations, which require the Hospital to have enough qualified staff to meet patients' needs. (See 42 C.F.R. § 482.23(b) (2015) [acute psychiatric care facility must "have adequate numbers of ... personnel to provide nursing care to all patients as needed"]; Cal. Code Regs., tit. 22, §§ 71213, subd. (f) [hospital is required to have "staffing requirements based on assessment of patient needs"], 71215, subds. (c)(2) & (d) [there must be "[s]ufficient registered nursing personnel" in order to provide "direct nursing care based on patient need," and each unit must have at least one RN on duty at all times].)
The Hospital maintains a strict policy requiring that every unit have at least two staff members on duty at all times, at least one of whom is a registered nurse. Staffing needs fluctuate, depending on the number of patients in a given unit (the unit's "census") and the level of care a patient requires (the patient's "acuity"). For purposes of staff scheduling, patient acuity is measured on a scale of one to four, expressed as a function of the number of "patient care hours" a patient requires. A level 1 patient demands little staffing attention while, at the extreme end, a level 4 patient — requiring that a care provider be within arm's reach of the patient at all times to ensure the safety of the patient or others — requires eight patient care hours per eight-hour shift, a one-to-one staffing ratio.
Charter Oak applies a mathematical formula (census multiplied by acuity) to determine the number of staff required to adequately staff each unit for each of three shifts, ranging from the lowest to highest acuity levels: (1) 1.1 patient care hours, (2) 1.5 patient care hours, (3) 2 patient care hours and (4) 8 patient care hours. At Las Encinas, staffing needs are determined using a one-to-six ratio of licensed staff to patients. For the first six patients the licensed staff must be an RN, and an additional RN or LVN is added for each
Staffing at both facilities requires both advance planning and the flexibility to make rapid adjustments Staffing needs can fluctuate rapidly and radically, depending on changes in census (patients admitted or discharged) and/or patient acuity levels (which may shift quickly, especially among patients treated for psychiatric disorders, e.g., a previously low-acuity patient suddenly threatens bodily injury, thus necessitating one-to-one care). Despite advance planning, staffing levels are dynamic and may require immediate adjustment if a unit finds itself with too many staff (due to discharges) or too few (due to a shift in acuity necessitating that staff be pulled from elsewhere to attend to the patient).
Because the Hospital provides treatment to patients suffering from various psychiatric disorders there is an ever-present risk patients will act out or become violent.
Hospital policy requires that members of the nursing staff ensure that their duties are covered while away from their units. The reason for this policy is obvious: staffing levels depend on the number of nursing staff workers required to address patient care needs, so if an assigned staff member takes a break, another appropriate patient care worker (e.g., an RN for an RN) must step in to ensure that patient care needs are met. In November 2005, Las Encinas began scheduling an RN to "float" among units to provide meal break relief for members of the nursing staff. Hospital policy also provides for 10-minute rest breaks, but neither Las Encinas nor Charter Oak schedules any staff to provide relief for rest breaks. Employees must arrange for any rest breaks on their own.
Plaintiffs claim that both Las Encinas and Charter Oak are chronically understaffed, and that the Hospital schedules additional staff for break relief only sporadically, thereby placing tremendous pressure on employees not to leave their units, even when they are due and need a break. If no one is scheduled to provide break relief, staff members are generally forced to rely on coworkers to cover for them in order to take a break.
The Hospital has a "Timekeeping Adjustment Form" (TAF, or "kronos") that employees may use to request compensation for missed meal breaks or overtime. Sometime after this lawsuit was filed, Las Encinas modified its TAF to permit employees to seek compensation for missed rest breaks. However, the Hospital conceded in discovery responses that its payroll system does not differentiate between meal and rest breaks, and it cannot confirm that any employee has ever been paid for a missed rest breaks.
Against this backdrop, plaintiffs allege that, in order to reduce expenses and boost profits, the Hospital maintains a policy and engages in an intentional business practice to provide only skeletal staffing resulting in units being chronically understaffed, and fails to provide sufficient relief staff to enable employees to take breaks to which they are lawfully entitled. This policy and practice results in class members effectively being forced to remain on duty and routinely being denied legally compliant meal and rest breaks or compensation therefor, and endangers patients and staff. Plaintiffs further allege that, in order to reduce expenses and increase profits while also meeting patient needs, maintaining appropriate staffing ratios and ensuring timely completion of required documents and paperwork, Hospital management regularly directs them to perform duties off the clock, while also actively discouraging employees from seeking or refusing to pay overtime wages.
Plaintiffs argued that the Hospital has common practices and policies which violate the California law requiring that employees be permitted to take a 30-minute uninterrupted meal break, relieved of all duties, for each five hours of work, and be permitted 10-minute rest breaks after the second and sixth hours of work in an eight-hour shift. In plaintiffs' view, the Hospital was intentionally and chronically understaffed, a practice which routinely denied nursing staff the opportunity to exercise the right to an uninterrupted 30-minute meal break within the first five hours of a shift. For purposes of class certification, the question is whether this theory of recovery can be "proved (or disproved) through common facts and law." (Bradley, supra, 211 Cal.App.4th at p. 1143.)
On appeal, we must "`consider only the reasons cited ... for the denial.'" (Jaimez, supra, 181 Cal.App.4th at p. 1297.) The trial court provided several reasons for its conclusion that plaintiffs' meal and rest break claims could not be determined through common proof.
First, it found that the "facial legality" of the Hospital's written policies regarding meal and rest breaks in its employee handbook was (virtually) undisputed. Accordingly, it required plaintiffs to demonstrate the existence of a "systematic practice by supervisors and managers of denying employees the benefits afforded to them" by those policies. Plaintiffs failed to satisfy this requirement because there was "too much variance between the declarations
Second, the court concluded that, even if plaintiffs had shown that employees had missed breaks, the evidence also showed that their reasons for doing so "varied, ranging from understaffing and coercive hospital policy ... to simple choice." The court found a similar evidentiary variation with regard to whether nursing staff were compensated for missed breaks, or dissuaded by supervisors from seeking such compensation.
Third, although "both Plaintiffs and [the Hospital] presented statistical evidence as to the existence (or lack thereof) of a systematic policy discouraging meal and rest breaks," the trial court found it "telling that Plaintiffs' statistical evidence [did] not account for the possibility that some (or most) of the employees voluntarily worked through or delayed their breaks." "Ultimately," the crux of the court's denial of certification was its overarching conclusion that plaintiffs' motion relied too heavily "on anecdotal evidence to prove the existence of a systematic violation of overtime and break laws."
As discussed below, each of these reasons is without merit.
The trial court found that because the "facial legality" of the Hospital's written policy regarding meal breaks was undisputed, plaintiffs were required — but had failed — to demonstrate the existence of a "universal practice" by management to deny nursing staff the benefit of that policy. The trial court's conclusion rests on a flawed premise. Plaintiffs do in fact dispute the "facial" legality of the Hospital's break policies.
California law also requires that an employee be entitled to take a second meal break for shifts that exceed 10 hours. (Brinker, supra, 53 Cal.4th at p. 1049.) Plaintiffs submitted evidence showing that Hospital policy does not provide for a second meal break, and staff are routinely not provided a second
In short, the trial court's underlying premise that the parties agreed the Hospital's written break policies were legally compliant was incorrect. Because denial of class certification rested, in part, on that flawed premise, reversal is in order. However, as discussed below, there are more substantive reasons for reversal.
Nor was the court correct to require, at the certification stage, that plaintiffs demonstrate a "universal practice" on the part of management to deny nursing staff the benefit of the Hospital's written break policy.
The trial court also improperly denied class certification on the basis that plaintiffs "rel[ied] too much on anecdotal evidence to prove the existence of systemic violation[s]" of wage and hour laws. First, much of the evidence on which plaintiffs rely is not merely anecdotal. Plaintiffs relied on the Hospital's own practices and policies, schedules and internal correspondence. Plaintiffs also relied on the findings of an independent survey undertaken in September 2008 by the State Department of Public Health, which revealed that, on the day of the inspection, the Hospital failed to provide requisite staff-to-patient ratios, and failed to ensure that staff assigned to monitor patients on a one-to-one basis had no other job duties in order to ensure a safe and secure patient environment. That survey also concluded that staff-to-patient ratios were exceeded when staff members provided break relief for coworkers by
Furthermore, both sides presented some anecdotal evidence. Plaintiffs presented the declarations of 25 witnesses who claimed they were rarely or never authorized to take rest and meal breaks due to understaffing or the Hospital's failure to provide break coverage, and were routinely forced to work off the clock or overtime without compensation. In rebuttal, the Hospital submitted 34 declarations by witnesses who said they were routinely authorized to take meal and rest breaks for which break coverage was provided, regularly took breaks (which they had not chosen to waive or delay) on time, understood the process to obtain and received pay for missed breaks and overtime, and were not forced to work off the clock.
The trial court chose to ignore Kriegler's statistical analysis, in part, because he failed "to account for the possibility that some (or most) employees voluntarily worked through or delayed their breaks...." This was error.
Second, the trial court erred in dismissing plaintiffs' statistical evidence because Kriegler's analysis was at odds with Crandall's.
Third, the trial court erred in disregarding entirely Kriegler's statistical analysis because Crandall reached a contrary conclusion (particularly where, as plaintiffs pointed out, Crandall's analysis may have failed to account for some important factors). Crandall opined that the Hospital's timekeeping records reflected wide variation in the percentage of meal breaks missed per employee, thus suggesting a need for individualized inquiry. But, as noted in Kriegler's supplemental declaration, Crandall's analysis does not account for an obvious reason for such variation: employees worked different amounts of time and the more shifts they worked, the more missed meal periods they were likely to have.
The Hospital takes issue with Kriegler's analysis, in part, because he conceded he made "no assumptions and offer[ed] no conclusions about whether meal breaks were provided," and thus could not offer an opinion on the ultimate issue — whether the Hospital's informal policy caused class-wide deprivation of meal breaks.
Plaintiffs presented substantial evidence, including the testimony of DON's Cook and Nocon, and documentary evidence that Hospital policy strictly prohibits staff from leaving their units for breaks without designated relief. State regulations require that the Hospital have sufficient RN's on duty to provide for patient needs and staff supervision. (Cal. Code Regs., tit. 22, §§ 71225, subd. (c), 71215, subd. (c).) Accordingly, Hospital staffing policy requires that staffing ratios be maintained and that an RN, and at least one additional nursing employee be on duty in each unit at all times. Without
Through Kriegler, plaintiffs presented evidence that the Hospital failed to comply with its scheduling projections and that scheduling data reflects it provided only sporadic break relief. In addition, a staffing coordinator from Las Encinas acknowledged that even when break relief staff was scheduled, those staff members were "often ... assign[ed] ... to tasks that would prevent them from doing any break relief." There is similar evidence that only sporadic meal break relief was provided at Charter Oak. Plaintiffs argue that the net effect of the Hospital's failure to adequately staff units was that employees were unable to take the breaks to which they were entitled, and remained responsible for patients throughout an entire shift. Further, even when the Hospital did provide relief for meal breaks, neither its written policies nor actual practice comply with the requirement that the first meal break be provided within the first five hours of an employee's shift, or that staff were provided the requisite uninterrupted 30 minutes.
Staffing coordinators from Las Encinas and DON Cook testified that Las Encinas does not provide or schedule any designated relief for rest breaks. Similarly, there is evidence that relief for rest breaks was never or rarely available at Charter Oak. Although the Hospital's written policy provides for some rest breaks, at both facilities it was left to employees to try to obtain coverage in order to take rest breaks; management took no responsibility to make such arrangements.
In sum, reversal is required with respect to the meal and rest break claims because the trial court's order denying class certification rests on erroneous assumptions, improper criteria, and, in some respects, insubstantial evidence. While plaintiffs' theory of liability with respect to the meal and rest break claims presents a common question suitable for class treatment, it is unclear from the record below whether individual issues, such as damages, or common issues will predominate — that is, whether a class proceeding is not only manageable but superior to the alternatives. Accordingly, we remand for further consideration.
"For the same reasons" it denied plaintiffs' meal and rest break claims, the trial court found that plaintiffs "failed to show a systematic policy of denying employees overtime," instead "provid[ing] only anecdotal evidence that employees were denied overtime or forced to work off the clock."
In seeking certification, plaintiffs argued that Hospital management was not only aware that its practices denied employees lawful breaks, management also refused to compensate employees for missed breaks, covered up its violations by altering time records and insisted employees work off the clock during meal breaks. Further, in accordance with California regulations, the Hospital requires that nursing staff complete all assigned tasks and paperwork before the end of each shift. Nursing staff often are unable to complete paperwork during their regular shift due to the press of attending to patients' immediate needs. As a result, staff are effectively forced to continue working beyond the end of their scheduled shifts to complete required paperwork. Plaintiffs assert that the Hospital actively discouraged employees from seeking overtime compensation and instructed employees to complete outstanding tasks off the clock, and that liability on this claim was subject to class-wide proof.
Plaintiffs asserted that, regardless of the Hospital's written policies and despite management's awareness that lawfully compliant breaks were routinely denied, the Hospital had a strict policy of requiring employees to clock out for a 30-minute meal break each shift, regardless of whether the employee actually took that break. Nursing staff was purportedly instructed by supervisors to clock out and continue working through their meal breaks. Supervisors, in turn, were instructed by management, including DON's Cook and Nocon, to ensure that employees under their supervision engaged in this practice.
Some putative class members said they were threatened with discipline by Casas if they failed to clock out for meal breaks even when there was no one to provide break relief. Others testified to the effect that their supervisors insisted that employees' time records reflect that meal and rest breaks were taken even when it was virtually impossible to take such breaks. Plaintiffs also presented evidence that nursing staff was directed and pressured to clock out for meal breaks, then immediately to resume caring for patients on their units, and that high-level Hospital management was aware of — indeed directly implemented — this practice.
For example, according to Ramirez, a former staffing coordinator at Las Encinas, DON Cook instructed her that employees must clock out for meal breaks without regard to whether breaks were actually received. Putative class members received similar instructions from Casas or their immediate supervisors. For example, Casas told one class member he had failed to clock
Further, plaintiffs argued that, if employees failed to clock out for a meal break not taken, the staffing coordinators adjusted time records to "correct this." According to Kriegler, his statistical analysis of a representative sampling of the Hospital's scheduling and payroll records demonstrated that "nearly one out of every five recorded meal breaks was either added or edited by a supervisor." Plaintiffs' declarations supported this conclusion. One putative class member declared that "[e]ven if we forgot to clock in and out [for meal breaks not taken], it didn't matter because the Hospital would simply alter the hours on our payslips so that we were not paid for the extra time." Another testified that Casas "told [her] that he would manually add [the employee's] meal breaks by hand to [her] time cards even if [she] did not take them." Ramirez declared that when she was staffing coordinator at Las Encinas, she was instructed to alter time records if they showed an employee had not received a full 30-minute lunch. Based on this evidence plaintiffs argue that common evidence demonstrates that the Hospital was not only aware that the policies and practices employed at its facilities routinely deprived employees of lawful breaks, it actively attempted to cover up and avoid compensating employees for those unlawful practices.
The Hospital argues that TAF's (or kronos) are used as a mechanism by which employees can fill out a form to request premium pay if they missed a meal break and continued working. The Hospital presented evidence that some employees, including some plaintiffs, were aware and availed themselves of this practice. Plaintiffs assert this evidence is misleading because Hospital policy placed the onus on employees to justify, and obtain authorization for, missed meal compensation at the same time management actively discourages employees from requesting such compensation, and routinely denies such requests. Plaintiffs' declarants stated that nursing supervisors were reluctant to sign off on TAF's because upper management placed pressure on them not to authorize overtime or missed meal compensation.
As for rest breaks, neither Las Encinas nor Charter Oak had a mechanism to enable employees to seek compensation for missed rest breaks. DON Cook and staffing coordinator Casas each confirmed that the Hospital lacked "any method for staff to report missed rest breaks and be paid for them." Charter Oak's chief operating officer testified she had "never seen a request for a missed rest break premium." The TAF's used by each facility (through which employees request compensation for missed meals or overtime) did not permit employees to request compensation for missed rest breaks.
Plaintiffs assert that these common policies and practices were implemented directly by Hospital management and applied to all nursing staff on a class-wide basis. As a result of these practices, they argue that employees were systematically denied missed break premiums mandated by state law.
Plaintiffs also submitted a statistical analysis performed by Kriegler (based on his analysis of Hospital timekeeping and payroll data) which they argued demonstrates that the Hospital's class-wide practices violate California law. According to plaintiffs, Kriegler's analysis shows:
(1) A small fraction of missed meal premiums were paid relative to the total number of missed meal breaks (e.g., although Hospital records show 67 late, short or completely missed meal breaks per 100 shifts, only 3.5 missed meal or rest premiums were paid per 100 shifts);
(2) Almost half (44.6 percent) of the meal breaks recorded were less than 30 minutes long;
(3) Over one-third (34.3 percent) of meal breaks recorded were taken more than six hours after the start of a shift;
(4) Most (over 80 percent) of an employee's first recorded meal breaks were either less than 30 minutes long or started more than six hours after the start of his or her shift;
(5) The majority (87.4 percent) of all work periods longer than 10 hours did not reflect that a second meal break was taken;
(7) There was a widespread practice by which management modified timekeeping records: 24.5 percent of the first and 46 percent of the second recorded meal breaks were "round punch meal breaks" (added or edited by supervisors), and most (84 percent) of all sampled class members' time records showed "round punch work periods";
(8) On days on which no break relief was reflected in the Hospital's daily schedules, timekeeping records still reflected an average of 2.2 meal breaks per day (suggesting that the timekeeping data overreports the number of meal breaks).
For purposes of class certification, plaintiffs' evidence, including Krieger's analysis, constitutes persuasive common proof of the Hospital's uniform policies and practices resulting in class-wide denial of lawfully compliant breaks to nursing staff. The statistical evidence reflects a common practice by which management modified timekeeping records, and substantiates declarants' testimony that the Hospital undertook active efforts to hide its wage and hour violations. Further, the fact that only a few missed meal premiums were actually paid relative to the total number of missed meal breaks, combined with evidence that management actively discouraged employees from seeking missed break compensation, reflects a common practice by the Hospital of failing to compensate employees for hours worked and constitutes common proof of liability.
Hospital policy requires overtime be approved in advance, and failure to seek approval for overtime may subject an employee to discipline. Plaintiffs assert that the Hospital actively discouraged nursing staff from requesting overtime by criticizing and threatening to discipline employees who worked too much overtime, criticizing and intimidating employees who requested overtime and repeatedly denying legitimate overtime requests. At the same time, employees — especially RN's, who were required to complete charts and other mandatory paperwork — were placed under pressure to ensure that all their work was completed each shift. DON Cook testified that "it was critical
The trial court articulated three reasons supporting its conclusion that the overtime subclass lacked commonality: (1) plaintiffs' evidence failed to address the possibility that employees worked off the clock by choice; (2) anecdotal evidence submitted by both sides demonstrated variation as to whether employees were denied overtime or forced to work off the clock; and (3) under Brinker, supra, 53 Cal.4th at page 1051, the fact that an employee is clocked out creates a presumption that he or she is not working, and plaintiffs failed to rebut this presumption.
Plaintiffs' remaining claims regarding certification of subclasses for waiting time penalties (§ 203) and inaccurate itemized wage statements (§ 226, subd. (e)), which are predicated on the claims for rest and meal breaks and
The order denying the motion for class certification is reversed and remanded for further consideration in accordance with our holding. The parties are to bear their own costs on appeal.
Chaney, J., concurred.
ROTHSCHILD, P. J., Concurring. —
I concur with some of the majority's reasoning, and I concur in the judgment. Like the majority, I believe that this case presents questions that may be subject to common proof, and that the case must be remanded to the trial court for determination as to whether those common questions predominate and can be managed efficiently in a single trial. I write separately because I believe the majority has not accurately described the nature of the common questions, and as a consequence, they underestimate the difficulties of managing the trial of this case.
The majority opines that plaintiffs called into question the facial legality of the hospital's policy regarding meal and rest breaks. But this is true only to a limited extent. The policy as written provided for a meal break "approximately half way between the beginning and ending of the employee's shift." It also allowed for two 10-minute rest periods "approximately halfway between starting time and an employee's meal period, and between the meal period and an employee finishing work for the day." For employees working what the hospital defined as a "normal work schedule" of "eight hours per workday," the policy on its face plainly provided for a meal break within the first five hours of work, as required by Labor Code section 512, subdivision (a) and associated regulations.
Plaintiffs have not based their theory of recovery primarily on the facial illegality of the hospital's policy. Instead, they have proceeded on the theory that the hospital's practices amounted to a de facto illegal policy. Plaintiffs have alleged that the hospital systematically understaffed its nursing positions, making it impossible for all employees to take all the breaks to which they were entitled. The question of whether such a policy existed presents a common question, subject to common proof. (See Duran v. U.S. Bank
Yet as the majority acknowledges, the existence of a common question or theory of recovery is not the entire story. For certification to be appropriate, the issues subject to common proof must predominate over individual issues. In addition, the court must be able to manage the litigation of individual issues within a trial. Although a lack of uniformity among class members is not a bar to certification (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 333 [17 Cal.Rptr.3d 906, 96 P.3d 194]), devising a method for managing variation among class members is not a given. Duran, supra, 59 Cal.4th 1, provided an object lesson in manageability. The case involved a class of 260 employees who worked in sales positions for the defendant bank. The plaintiffs alleged that the employees were not exempt from minimum wage and overtime pay requirements, and the determination of this depended on whether the job reasonably required employees to spend the majority of their days selling outside the bank. The trial court permitted the parties to present evidence from only 20 plaintiffs. (Id. at pp. 16-17.) The court then extrapolated from those 20 to determine liability for all 260. (Id. at p. 24.) The Supreme Court rejected this method in part because the sample was likely skewed, but also because the trial court improperly prevented the defendants from introducing any evidence regarding the class members outside the sample of 20. (Id. at pp. 33-34.) As the Supreme Court noted, by "excluding relevant evidence central to the defense, the court here did not manage individual issues. It ignored them." (Id. at p. 34.) This was error because "a class action trial management plan may not foreclose the litigation of relevant affirmative defenses, even when these defenses turn on individual questions." (Ibid.)
This case is even more complex than Duran and may present even greater variability among putative class members. The class is four times as numerous, spread over different positions, with employees who may have had vastly differing experiences because they worked at different times, with
Crucially, the individual evidence in this case would be relevant to defendants' liability, not merely the extent of damages. As the Duran court noted, "Defenses that raise individual questions about the calculation of damages generally do not defeat certification. [Citation.] However, a defense in which liability itself is predicated on factual questions specific to individual claimants poses a much greater challenge to manageability. This distinction is important. As we observed in City of San Jose v. Superior Court [(1974)] 12 Cal.3d [447,] 463 [115 Cal.Rptr. 797, 525 P.2d 701]: `Only in an extraordinary situation would a class action be justified where, subsequent to the class judgment, the members would be required to individually prove not only damages but also liability.'" (Duran, supra, 59 Cal.4th at p. 30.) In a case like this one, where plaintiffs' primary allegations are that the hospital had de facto illegal policies, as opposed to policies illegal on their face, individual evidence is likely to be central both to plaintiffs' case and to the hospital's defense. Indeed, the evidence introduced thus far includes not only statistical evidence that may be used to establish or challenge plaintiffs' common theory of recovery, but also anecdotal reports from individual class members. At trial, the hospital will most likely defend itself by eliciting testimony that employees missed breaks only rarely, or delayed them voluntarily. The majority claims that "[i]f an employer fails to provide legally compliant meal or rest breaks, the court may not conclude employees voluntarily chose to skip those breaks." (Maj. opn. ante, at p. 410.) But in this case, whether employees chose to skip breaks voluntarily is important to determining whether an illegal policy existed. The individual differences cannot simply be swept under the rug on the ground that they pertain only to damages. This is not a case where liability may be determined solely through common evidence, and the only reason to deal with individual issues is to ask, with respect to each class member, "whether he or she worked for defendant during the relevant period" in a position affected by the alleged illegal practice. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 332.) Plaintiffs' own theory makes the experience of each individual necessary to determining liability.
The trial court is in a far better position than we are to determine whether these obstacles can be overcome, and it is for just this reason that trial courts
