In a sweet ruling for employers, a California court of appeal affirmed a trial court's denial of class certification of a meal break claim due to employee timekeeping records. This decision, Salazar v. See's Candy Shops Inc., is noteworthy, as it explains how employee timekeeping records can be used to defeat class certification following the California Supreme Court's recent ruling that employee timekeeping records can establish a rebuttable presumption in favor of class certification.
The Claim
At issue in this case was whether the trial court properly denied class certification of a claim that the employer was not providing employees second meal breaks. Under California law, an employee is entitled to a second 30-minute meal period for shifts longer than 10 hours (absent a valid waiver). The plaintiff claimed that employees were provided a work schedule form that listed the times employees should take their two 10-minute rest periods and their first 30-minute meal period but that the schedule form did not contain any information about a second meal period. The plaintiff argued the schedule form's failure to include a second meal period evinced a common policy of not providing second meal periods.
The Court of Appeal's Affirmance
The trial court denied class certification, and the court of appeal affirmed, applying the deferential "substantial evidence" standard of review. The primary ground the court of appeal relied on was the putative class members' timekeeping data. That data reflected that for 24 percent of shifts over 10 hours (shifts eligible for a second meal period), a second meal period was taken. Further, 43 percent of employees took a second meal period at some point. This data supported the inference that the schedule form was not sufficient on its own to establish a consistent policy or practice of denying second meal periods. Rather, due to the significant number of employees who did record second meal periods, it was reasonable for the trial court to conclude (as it did) that a significant number of employees made their own decision not to take second meal periods. And if it was an employee's decision not to take a meal period, then there is no liability. Therefore, individual testimony would be necessary to establish the reason that employees did not take second meal periods, which renders class treatment inappropriate.
The court of appeal also noted that class certification was not proper because adjudication of the employer's affirmative defense (regarding employee waiver of meal periods) would require individualized inquiry. "Without individual testimony, a jury could not determine whether the employees who worked the 66 percent to 75 percent of shifts that did not include a second meal break missed that break because See's did not offer it or because the employees chose not to take it." This holding supports the notion that the employer's liability defenses must be included as part of the class certification calculus, while also providing insight into how the presumption of a class violation established by timekeeping records can be rebutted.
The court of appeal also found class certification was improper due to the plaintiff's failure to present an adequate trial plan. This conclusion and the others discussed above all arise out of the same reasoning: The plaintiff's theory was that putative class members were denied a second meal period due to employees not having scheduled second meal periods. However, the employee timekeeping records show that employees did (at times) take second meal periods. Therefore, the employee schedules cannot establish that employees were not provided second meal periods, even if second meal breaks were not recorded a majority of the time.
Lessons Learned
The decision does not address what constitutes a sufficient percentage of shifts reflecting meal periods to rebut the plaintiff's theory. In this case, 24 percent of qualifying shifts recorded second meal periods, but what if it was 15 percent or 10 percent? This is where the deferential standard of review comes into play. Had the trial court concluded the opposite, and granted class certification, after determining that 24 percent of shifts reflecting second meal periods was insufficient to rebut the plaintiff's theory, the court of appeal might have potentially concluded that that was within the trial court's discretion as well. But the potential range may be addressed in later cases.
Nevertheless, the decision demonstrates that employee time punches can be a shield for employers and not just a sword for plaintiffs, even if the time punches do not reflect full compliance. Theories of class liability are usually just that: theories. Employee timekeeping records and other evidence (such as employee declarations) can bring reality to the forefront and poke holes in those theories or at least demonstrate the overbreadth of a putative class, thereby limiting or defeating certification and minimizing potential exposure.
Bottom Line
Employers often argue that employee timekeeping records are insufficient for plaintiffs to establish class certification. But even inconsistent timekeeping records could be determinative at the class certification stage, and employers should take steps to ensure they are your friend and not an enemy.
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