Class Certification is Proper Means for Testing the Adequacy of Employer's Meal and Rest Policies -- Lubin v. Wackenhut, Corp.

In Lubin v. The Wackenhut Corp., the plaintiffs were security guards who claimed they should be certified as a class because their employer maintained a consistent policy of requiring them to remain constantly on-duty throughout their shifts at certain job sites.  (The facts of the case were therefore basically similar to those in Augustus v. ABM Industries, Inc.) 

The 50-page opinion thoroughly reviews and synthesizes the recent state and federal authorities related to class certification and collective proof.  The opinion is worthy of several separate posts (which may be forthcoming).  For now, however, I wanted to highlight what may be the most important aspects of the opinion -- i.e., how class-wide liability may be properly based on an evaluation of the employer's general policy.     

The trial court in Lubin had determined that, even if Wackenhut's general policy was unlawful, it could still avoid liability by proving that "in practice" some individuals were nevertheless able to take legally compliant breaks.  The trial court further reasoned that, under the U.S. Supreme Court's Title VII decision in Wal-Mart v. Dukes, such individual instances of compliance would need to be separately adjudicated.  

The Appellate Court decisively rejected this liability standard.  Instead, it explained that proof of an unlawful policy will, by itself, establish the employer's liability.    

Throughout its order the court also found that individualized inquiries were necessary because, pursuant to Wal–Mart, Wackenhut was entitled to defend by proving that, even if plaintiffs presented evidence that it had a general policy of not providing valid meal or rest breaks, in practice some employees were afforded an off-duty meal or rest break. This rationale misapplies Wal–Mart. In Wal–Mart, the Supreme Court found that plaintiffs failed to present evidence establishing the existence of a common policy of discrimination. In this case, when it originally certified the class, the trial court found that plaintiffs had presented sufficient evidence that Wackenhut had policies and practices that violated wage and hour laws. Because plaintiffs met their burden of establishing a common policy, whether an individual was permitted to take a valid meal or rest break on any given day is a question of damages. 

In other words, once liability is established on the basis of an unlawful policy, any instances in which legally compliant meal or rest breaks might have occurred in spite of the unlawful policy will merely serve to reduce the employer's aggregate damages.

 

 

Employees Cannot be "On-Call" During Rest Breaks -- Augustus v. ABM Security Services, Inc.

 In its 2014 decision of Brinker v. Superior Court, the California Supreme Court explained that employees must be "relieved of all duties" during their statutorily required 30-minute meal periods.  Since that time, however, courts have struggled to define the exact status that employees are entitled to enjoy during the shorter 10-minute rest breaks which are also required by statute.   In particular, is it permissible for employees to remain "on-call" during their rest breaks?

For example, ABM Industries required its security guards to wear two-way radios and pagers and to remain "vigilant" and "available to respond" during their rest breaks.  The trial court entered a 90 million class action judgment on the ground that this "on-call" status was tantamount to requiring the employees to work during their rest breaks.  An appellate panel overturned this judgment on the ground that being on-call should not be considered the same as being required "to work."     

But the December 22, 2016 Supreme Court opinion in  Augustus v. ABM Industries, emphatically settled the issue.  The Supreme Court held that the same "relieved of all duty" standard for legally compliant meal periods also applies to rest periods. This means that during rest periods employees must be temporarily relieved of even the minimal duty to remain available to respond to radio or pager calls.  As a result, "state law prohibits on-duty and on-call rest periods."

 

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