• ITVI.USA
    15,536.540
    74.080
    0.5%
  • OTLT.USA
    2.754
    0.002
    0.1%
  • OTRI.USA
    20.490
    -0.180
    -0.9%
  • OTVI.USA
    15,507.170
    69.970
    0.5%
  • TSTOPVRPM.ATLPHL
    3.300
    0.000
    0%
  • TSTOPVRPM.CHIATL
    3.140
    0.190
    6.4%
  • TSTOPVRPM.DALLAX
    1.590
    0.150
    10.4%
  • TSTOPVRPM.LAXDAL
    3.330
    0.020
    0.6%
  • TSTOPVRPM.PHLCHI
    2.170
    0.020
    0.9%
  • TSTOPVRPM.LAXSEA
    4.080
    0.130
    3.3%
  • WAIT.USA
    125.000
    -1.000
    -0.8%
  • ITVI.USA
    15,536.540
    74.080
    0.5%
  • OTLT.USA
    2.754
    0.002
    0.1%
  • OTRI.USA
    20.490
    -0.180
    -0.9%
  • OTVI.USA
    15,507.170
    69.970
    0.5%
  • TSTOPVRPM.ATLPHL
    3.300
    0.000
    0%
  • TSTOPVRPM.CHIATL
    3.140
    0.190
    6.4%
  • TSTOPVRPM.DALLAX
    1.590
    0.150
    10.4%
  • TSTOPVRPM.LAXDAL
    3.330
    0.020
    0.6%
  • TSTOPVRPM.PHLCHI
    2.170
    0.020
    0.9%
  • TSTOPVRPM.LAXSEA
    4.080
    0.130
    3.3%
  • WAIT.USA
    125.000
    -1.000
    -0.8%
Truckload Indexes

Rest break policy found not sufficient for class certification without injury

The United States Court of Appeals for the Ninth Circuit (which oversees California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) recently addressed whether a district court erred in denying an employee’s claim for improper rest breaks under California law where the employer allegedly had a defectively written rest break policy.

Background

The employee was employed as a delivery specialist in one of the employer’s retail locations in California. Near the end of her employment, the employee sued the employer alleging that it had violated California’s rest break requirements. The employee alleged that the employer had a defective rest break policy and because of this defective policy, the employer failed to provide her and other employees with compliant rest breaks and had failed to pay rest break premiums.

The employee claimed that the employer had violated California’s rest break law, which requires employers to authorize and permit a paid 10-minute rest break “for every four hours of work or major fraction thereof.” The employee brought a motion to certify (which combines a group of claims for people who may be similarly situated) a class of nonexempt, hourly paid employees on the issue.

In denying the employee’s motion to bring the claims as a group, the district court found that the employee had failed to show that the allegedly defective policy was consistently applied to the employees. The district court also observed problems with the employee’s own declaration (a sworn written statement filed with the court), most notably  its failure to affirmatively state that she had been denied proper rest breaks.  The employee appealed the district court’s decision to the 9th Circuit Court of Appeals.

Appellate Court’s Decision

The Ninth Circuit affirmed the district court’s denial of the employee’s motion for class certification. It found that the district court had not erred in denying class certification because the employee “failed to show that employees suffered the common injury of being deprived of rest-period premiums to which they were legally entitled.” The employee alleged, among other things, that because the employer’s rest break policy did not exactly follow the California rest break law’s standard, it was automatically a violation of the law.  The employee further alleged that her and her fellow employees were not given the rest breaks they were owed.

Focusing on the employee’s reliance on the employer’s allegedly defective rest break policy, the Ninth Circuit determined that the “mere existence of a facially defective written policy¾without any evidence that it was implemented in an unlawful manner¾does not constitute ‘[s]ignificant proof’…that a class of employees were subject to an unlawful practice.” The Ninth Circuit further agreed with the district court’s findings that the employee’s evidence had failed to show actual violations of California’s rest break laws or that the policy had been applied to employees.

Takeaway

The Ninth Circuit’s decision can be considered a win for employers facing wage and hour class actions based on alleged technical violations of California’s rest break laws. It concludes that the mere existence of a facially defective written policy alone is insufficient grounds to support class certification since a plaintiff must prove that the policy was implemented and actually applied to the employees in an unlawful manner. Employers should be cautious, however, in relying on this case with regard to any of its currently existing policies, or as a free pass.   While the employer here was fortunate to avoid a loss in court for a policy that was not in full compliance with state law, the company  still likely spent a lot of money in defending its position. It is important for employers to be aware of both federal and state laws and to ensure that their policies technically comply with them. As Benjamin Franklin observed, “An ounce of prevention is worth a pound of cure.” Employers should periodically review existing policies to ensure that they are compliant with applicable federal and state laws, including seeking appropriate expert advice, as necessary.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

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