Wage and Hour Update

• Citation: Vol. 28 No. 2
• Publication year: 2014
• Author: By Lois M. Kosch

Wage and Hour Update

By Lois M. Kosch

Lois M. Kosch is a partner at Wilson Turner Kosmo. She specializes in counseling and representing employers in all aspects of employment law and litigation. Ms. Kosch is a former member of the Labor and Employment Law Section's Executive Committee.

Class Certification Appropriate Where Plaintiffs Alleged a Uniform Policy of Denying Compensation for Pre-Shift Work

Jones v. Farmers Ins. Exchange, 221 Cal. App. 4th 986 (2013)

In this case, the appellate court ruled a class certification motion adequately rested on the alleged existence of a uniform employment policy that denied employees compensation for pre-shift work. Plaintiffs were claims representatives who spent most of their time in the field investigating claims. An employer memo explained that the representatives might be required to perform work tasks at home for which they would not be compensated. Non-compensated work was defined as "computer sync time" (obtaining driving directions and assignments before driving to the first appointment). Administrative work at home was considered "compensated."

Plaintiffs alleged failure to compensate for pre-shift work and claimed they spent on average 4.28 hours per week on uncompensated tasks. They alleged the company-wide policy of denying compensation for such work was evidenced by the employer memo. In its defense, the employer argued it had a policy prohibiting off-the-clock work and submitted evidence showing prep time was regularly approved for compensation—when requested. As such, the employer argued there was no "common policy" to deny compensation.

The trial court denied class certification on the grounds that common issues did not predominate. The trial court pointed to a number of variables that would impact whether any particular class member was denied pay (such as whether time spent on tasks was de minimis, when assignments were posted, and how busy the class member was on the day the assignment was posted) and concluded such individualized inquiries compelled the conclusion that common questions did not predominate.

The court of appeals reversed and ordered class certification, citing Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), which said, "Claims alleging a uniform policy consistently applied to a group of employees . . . are suitable for class treatment." When evaluating class certification, the court should not focus on individual issues concerning the right to recover damages...