In Alberts v. Aurora Behavioral Health Care, ___ Cal.App.4th ___ (Oct. 16, 2015), the Court of Appeal (Second Appellate District, Division One) reversed an order denying class certification of meal period and rest break claims.
Among other holdings, the Court reconfirmed that employers may not avoid class certification (or liability) merely by adopting a written policy that may be facially compliant with the law:
Even if we assume (as the trial court did) that the Hospital’s written meal and rest break policy is “facially legal” and its facial legality is undisputed by plaintiffs, the mere existence of a lawful break policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks. (See, e.g., Brinker, supra,53 Cal.4th at p. 1040 [an “employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks”]; Jaimez, supra, 181 Cal.App.4th at p. 1303; [Ibid.; Boyd v. Bank of America Corp. (2014) 300 F.R.D. 431, 442); cf. Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 963 [reversing summary judgment for employer based, in part, on evidence that truck drivers “felt pressured” not to take rest breaks, and management knew some drivers were not taking breaks].)
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 failed to analyze the proper question––whether plaintiffs had articulated a theory susceptible to common resolution. (Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 726 (Benton) [“the proper inquiry is ‘whether the theory of recovery advanced by the plaintiff is likely to prove amendable to class treatment’”]; Sav-On, supra,34 Cal.4th at p. 327.) Instead, it asked whether the evidence was sufficient to establish plaintiffs’ ultimate right to recovery. At the certification stage, plaintiffs need only establish that the question of whether the Hospital’s practices or procedures resulted in the denial of lawful breaks can be determined on a class-wide basis. Instead of undertaking this analysis, the trial court held that plaintiffs had to prove class members missed all breaks to which they were entitled. This is an incorrect standard for certification that, as other courts have also found, if correct, would prevent certification of virtually any wage and hour class. (See, e.g., Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207 (Bufil) [“a class is not inappropriate merely because each member at some point may be required to make an individual showing as to eligibility for recovery”]); Benton, at pp. 725–728 [reversing order denying certification despite evidence that some putative class members received breaks].)
Slip op. at 18-19 (footnote omitted).
The opinion also addresses the use of expert statistical evidence at the class certification stage. Id. at 22-26.