In Safeway, Inc. v. Superior Court (Esparza), ___ Cal.App.4th ___ (Jul. 22, 2015), the Court of Appeal (Second Appellate District, Division Four) refused to disturb an order granting class certification of a UCL claim predicated on violations of Labor Code section 226.7, which requires employers to pay premium wages for missed meal periods.
The trial court granted class certification, and the Court of Appeal affirmed, even though the defendant filed more than 2,000 class member declarations in an effort to oppose certification. Slip op. at 12. (Just imagine the number of hours it took to gather those. Probably equivalent to an attorney billing full time for a couple of years.)
The Court of Appeal reached the merits of the UCL claim to some degree, finding it necessary in order "to adjudicate the propriety of a class action." Id. at 15 (citation omitted). The Court concluded:
[A] UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer’s instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement. (See Cortez, supra, 23 Cal.4th at p. 177 [under UCL, employer’s failure to pay earned wages was an unlawful business practice]; Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206 [under UCL, California employer’s failure to pay overtime wages to out-of-state employees was an unlawful business practice]; Tomlinson v. Indymac Bank F.S.B (2005) 359 F.Supp.2d 891, 895-897 [employer’s failure to pay meal break premium wages was an unlawful business practice under the UCL].)
Slip op. at 18. The Court also held that the conduct did not fall within any Cel-Tech safe harbor. Id. at 19-20.
As for whether this UCL claim was suitable for class treatment, the Court concluded it was, relying heavily on Justice Werdegar's concurrence in Brinker. Slip op. at 23-25. Most notably, the Court adopted the presumption, recognized by Justices Werdegar and Liu, that if the employer's records show no meal period taken when one was required, this creates a rebuttable presumption that a violation occurred:
Here, establishing that a significant number of employees accrued unpaid meal break premium wages is capable of common proof, in view of petitioners’ time punch data and the presumption identified by Justice Werdegar. There is no dispute that the applicable wage order is Wage Order 7-2001 (Cal. Code Regs., tit. 8, § 11070), which obliges employers to provide at least one 30-minute meal break for shifts of over five hours (absent a waiver available only in limited circumstances) (id., subd. (11)(A)), requires employers to record meal breaks (id., subd. (7)(A)(3)), and permits an “on duty” meal break only with the employee’s express written agreement (id., subd. (11)(C)). The time punch data and records identified by [plaintiffs' accounting expert] are capable of raising a rebuttable presumption that a significant portion of the missed, shortened, and delayed meal breaks reflected meal break violations under section 226.7. Because that fact potentially can be shown without consideration of an unwieldy number of individualized issues, the record shows that the facts necessary to establish liability are capable of common proof.
Slip op. at 25 (emphasis added).
The whole opinion is worth a good read.