In Jones v. Farmers Insurance Exchange, ___ Cal.App.4th ___ (Oct. 28, 2013; pub. ord. Nov. 26, 2013), the Court of Appeal (Second Appellate District, Division Three) reversed an order denying class certification of wage and hour claims.
The class certification motion rested on the existence of a uniform employment policy, namely, a policy of not compensating workers for required tasks performed before they clocked in for their shifts. The Court of Appeal held that the wage and hour claims stemming from this policy should have been certified for class treatment, even though the record contained evidence that the policy was not always uniformly applied (or, put another way, that no such uniform policy existed). That is because the court's focus in determining whether certification is proper should be on the plaintiffs' theory of recovery:
Plaintiffs’ theory of recovery is that Farmers applied a uniform policy to all putative class members denying them compensation for work performed at home before the beginning of their scheduled shifts. The existence of such a policy is a factual question that is common to all class members and is amenable to class treatment. Whether such a policy, if it exists, deprives employees of compensation for work for which they are entitled to compensation is a legal question that is common to all class members and is amenable to class treatment. “Claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment. [Citations.]” (Brinker, supra, 53 Cal.4th at p. 1033.)
Farmers argued in opposition to the class certification motion that it had no uniform policy denying compensation for preshift work and that individual issues predominated in determining whether APD claims representatives performed compensable off-the-clock work for which they were uncompensated. It argued that such individual issues included determining what tasks each employee performed before the beginning of his or her shift, whether such activities were de minimis and whether the employee’s supervisor was aware of any off-the-clock work. It filed declarations by APD claims representatives and others stating generally that they were not required to perform unpaid preshift work, that they requested and received approval to work overtime if necessary, and that the time required to start up their computers in the morning and access the ServicePower program was minimal.
Farmers’s evidence concerns the existence of a uniform policy denying compensation for preshift work, which is a common question amenable to class treatment, as we have stated. Its evidence also goes to individual issues concerning the right to recover damages, which do not preclude class certification. (Sav-On, supra, 34 Cal.4th at p. 334; Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, 235, 237; Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301-1307 (Jaimez); Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1536.)
We conclude that the trial court applied improper criteria by focusing on individual issues concerning the right to recover damages rather than evaluating whether the theory of recovery is amenable to class treatment. (Jaimez, supra, 181 Cal.App.4th at p. 1299 [“The trial court misapplied the criteria, focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating ‘whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment’ ”].) We also conclude that substantial evidence does not support the court’s finding that common issues do not predominate. (Bluford v. Safeway, Inc. (2013) 216 Cal.App.4th 864, 871 [held that in light of the plaintiff’s theory of recovery based on uniform policies and procedures denying drivers compensation for rest periods, the trial court’s conclusion that common issues did not predominate was not supported by substantial evidence].) Plaintiffs’ theory of recovery based on the existence of a uniform policy denying compensation for preshift work presents predominantly common issues of fact and law. Farmers’s liability depends on the existence of such a uniform policy and its overall impact on its APD claims representatives, rather than individual damages determinations. (Jaimez, supra, at p. 1300.) Moreover, the trial court erred to the extent that its ruling was based on its evaluation of the merits of Plaintiffs’ claim as to the existence of such a uniform policy. (Ibid.)
Slip op. at 12-15.