United States: The Northern District of New York Denies Spread Of Hours and Meal And Rest Period Class Certification Citing Comcast Corp. v. Behrend

Recently, the United States Supreme Court in Comcast Corp. v. Behrend, an antitrust case, held that a class was improperly certified under Rule 23(b)(3) because the Third Circuit erred in refusing to decide whether the plaintiff class' proposed damages model could show damages on a classwide basis (if properly analyzed, the model was inadequate and the class should not have been certified).  The Supreme Court reversed the Third Circuit after examining the merits of the case as permitted by Wal-Mart v. Dukes and found that because plaintiffs were unable to show damages were measurable on a classwide basis, class certification was improper because "questions of individual damage calculations will inevitably overwhelm questions common to the class." 

In Roach et al., v. T.L. Cannon Corp., d/b/a Applebee's et al., (N.D. NY, Case No.: 3:10-CV-591), plaintiffs filed a class action alleging, among other things, spread of hours and meal and rest period violations under the NYLL against 61 Applebee's Neighborhood Grill and Bar Restaurants.  Citing Comcast Corp. v. Behrend, the Court held that plaintiffs' spread of hours claim cannot be certified because "[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class."  The Court wrote:

... Plaintiffs contend that damages need not be considered for Rule 23 certification even if such damages might be highly individualized. [] This position is in contravention of the holding of Behrend. Furthermore, a demanding and rigorous analysis of the evidentiary proof on this claim does not yield a finding that damages are capable of measurement on a classwide basis. Rather, Plaintiffs' proof that some employees, on various occasions, were denied their 10-hour spread payments indicates that damages in this putative class are in fact highly individualized. ...

Plaintiffs' meal and rest period claim also was not certified.  Plaintiffs alleged they were denied pay for all hours worked as a result of managers altering time records to reflect that employees were given a rest period that they had not actually taken.  The evidence submitted established that: (a) some employees had to sign a break log following which the manager had to manually enter the break time into the payroll system; (b) no forms were provided for employees to note instances in which they missed or worked through breaks to ensure they were not entered into the payroll system; (c) according to a former manager, she believed defendants trained their managers to improperly deduct breaks from the time records of hourly employees, even when the employees did not actually take a break; (d) based on a comparison of time records and pay stubs from plaintiff Roach, there is an indication that deductions were made from his time card for breaks not taken; (e) deposition testimony from another manager indicated that he heard complaints from hourly employees that their time records would reflect that they took a break when they had missed it; and, (f) of the 78 declarations submitted by plaintiffs, 45 revealed claims of improper deductions from pay for breaks that were not taken. The Court concluded:

"The proof of damages on this claim is highly individualized in that it is dependent on the circumstances of each individual employee such as whether: [a] each had access to a time clock or had to use the break log; [b] each actually used/signed the break log; and [c] the manager each worked under failed to enter the correct information onto the payroll records.

It is becoming clear that Comcast ultimately will stand for the proposition that a case cannot satisfy Dukes commonality standards if damages must be proven separately for each plaintiff.  Wage and hour damages (for example off-the-clock work or overtime) often depend on individualized proof (schedules, management, seniority, etc.).  If Comcast stands for the broad proposition that common issues predominate only when damages can be calculated on a classwide (rather than individualized) basis, Rule 23 (b)(3) wage and hour class certifications should be denied more often.  

Recent history supports this conclusion.  About a week after the Supreme Court's ruling in Comcast, the Supreme Court in Ross v. RBS Citizens, N.A., vacated a Seventh Circuit decision certifying an Illinois Minimum Wage Law class and remanded the case for further consideration in light of Comcast.   In Ross, a class of assistant managers alleged they were misclassified as exempt, and a class of hourly employees alleged they were subject to an unofficial policy of not paying for all time worked despite a lawful official overtime policy.   The Seventh Circuit explicitly found that Dukes commonality standard did not affect the case's commonality analysis (e.g., while the Dukes workers had to prove individual discriminatory intent to back up their claims under Title VII, the RBS plaintiffs had maintained a common claim that the company had an unlawful policy to deny overtime pay). 

Not only is it clear that the Supreme Court views Dukes as applying to all Rule 23 class actions, but also there is movement that, for off-the-clock work (for example), it probably is inappropriate to certify a class when employees must prove the type and amount of extra work performed (especially when employers are entitled to prove they did not know about or approve of the extra work).  For exemption cases, it probably is inappropriate to certify a class when employees claiming to have been misclassified must prove their specific duties.  This is because, as precluded under Dukes, individual issues will more often than not predominate over class issues.  Whether or not Comcast ultimately means that state law wage and hour claims requiring individualized proof of damages are inappropriate for class treatment, we certainly will be making this argument in all wage and hour class actions going forward.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, offers innovative solutions to the legal and business challenges presented by today's evolving global markets. The Duane Morris Institute provides training workshops for HR professionals, in-house counsel, benefits administrators and senior managers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.