As we recently reported here, there have been a number of appellate decisions ordering class certification based on the existence of an employer’s companywide policy – all while overlooking numerous individualized questions that would undoubtedly create manageability problems during trial. On December 30, 2013, the California Court of Appeal in Johnson v. California Pizza Kitchen, Inc., 2013 WL 6858373 (Cal. App. 2 Dist. Dec. 30 2013) anticipated these trial management issues and upheld the trial court’s decision denying class certification.
David Johnson and three other former non-exempt employees sued California Pizza Kitchen, Inc. (“CPK”) and alleged the company failed to pay them and other non-exempt employees for their off-the-clock work, including time spent performing opening and closing duties and working through their meal and rest breaks. Plaintiffs also alleged that although CPK’s policies were “facially compliant,” the company chronically understaffed its restaurants, resulting in missed, interrupted or late breaks. Finally, plaintiffs claimed that as a result of the aforementioned alleged violations, CPK failed to furnish its employees with accurate itemized wage statements.
The trial court denied class certification on the ground that common questions did not predominate the litigation. The California Court of Appeal agreed.
The Court recognized that the Supreme Court’s decision in Brinker Rest. Corp. v. Superior Court, requires plaintiffs to show the existence of “a uniform policy consistently applied to a group of employees in violation of the wage and hour laws” (emphasis added). Here, the Court concluded that plaintiffs failed to make this showing. The court noted that CPK’s company policy expressly prohibited off-the-clock work and similarly observed that if there were deviations from the company’s official policy, this was due, among other things, to each individual supervisor’s varied application of the policy. Specifically, the court noted that out of 89 employee declarations submitted by plaintiffs, only 42 claimed any off-the-clock work. With respect to the meal and rest break subclasses, the Court highlighted the trial court’s findings that fewer than 50% of the declarations submitted claimed any missed meal or rest periods. As a result, the trial court properly denied class certification as to these claims.
Unfortunately for employers, this decision is not published and therefore, it is not citable nor binding precedent upon other courts. On January 9, 2014, the California Employment Law Counsel filed a request to publish this decision. If published, employers can rely on the decision for the principle that class certification is only appropriate where plaintiffs have shown with evidence that the company has a companywide policy of violating California employment laws. This is markedly different from other decisions affirming class certification where plaintiffs have shown merely that the employer has a facially neutral policy that allegedly violates California employment laws.