Plaintiffs were former employees of USSA, a private security guard company. As a condition of employment, all employees were required to sign an agreement to take their meals on duty, rather then having a meal break. Plaintiffs sought to maintain a class action on behalf of themselves and all others similarly situated, alleging that the employer’s policy of requiring employees to work through their legally mandated meal periods made USSA liable for paying compensation for missed meal periods pursuant to California Labor Code 226.7 and the applicable wage order. The district court certified the subclass pursuant to FRCP rule 23(b)(3), which defendant challenged this ruling.

As the Ninth Circuit noted, in order for a class to be certified, plaintiffs would need to satisfy two overlapping requirements. First, under Rule 23(a)(2), the commonality requirement must be satisfied. Second, the proposed subclass must satisfy at least one of the requirements listed in Rule 23(b)(3).  Here, under section 23(b)(3), Plaintiffs sought to prove that questions of law or fact common to class members predominate over all questions affecting only individual members.

The Ninth Circuit held that these requirements had been met.

Rule 23(a)(2)

As the Ninth Circuit explained, commonality requires that the class treatment will generate common answers apt to drive the resolution of the litigation; a single significant question of law or fact is all that is needed.

Under California law, an employer may not require any employee to work during any meal mandated by an applicable order of the industrial welfare commission. Wage Order No. 4–2001 guarantees certain employees a 30 minute meal for every five hours of work. An on-duty meal period is permitted when the nature of the work prevents an employee from being relieved of all duty, among other things.

After reviewing case law relating to this wage order, the Ninth Circuit noted that in Brinker v. Superior Court  the California Supreme Court held that the Court of Appeal had improperly failed to certify a class of plaintiffs who alleged that their employer uniformly denied them rest breaks.  Likewise, recently in Faulkinbury v. Boyd & Associates, 216 Cal App. 4th 220 (2013), the court had held that a uniform policy that violates wage and hour laws can be the basis of class certification. In so doing, the court rejected defendants’ argument that the nature of work exception could apply such as to defeat commonality. USSA had likewise attempted to defeat commonality based on this exception, arguing that the exception would apply differently to different members of the proposed class.

In light of these authorities, the court concluded that plaintiffs claim would yield a common answer that would be likely to drive the resolution of litigation as required by rule 23(a)(2). As the Ninth Circuit noted, the showing necessary to establish the nature of work exception as high. In order to make such a showing USSA had to demonstrate not just that its employees duties vary, but that they vary to an extent that some posts would qualify for the nature of work exception, while others would not.

In sum, the merits inquiry would turn on whether USSA was permitted to adopt a staffing model that did not allow for off-duty meal periods, namely, whether it could invoke a nature of the work defense on a classwide basis, where the need for on-duty meal results from its own staffing decisions. The legality of this policy was a significant question of law that was apt to drive the resolution of the litigation, and this Rule 23(a)(2) was satisfied.

Rule 23(b)(3)

As the Ninth Circuit noted, rule 23(b)(3)’s predominance criteria focuses on the relationship between the common and individual issues in the case and tests whether the proposed class is sufficiently cohesive toward education by representation. Here, the court held that it was.  First, as the court noted, the nature of the work defense can and will be applied on a classwide basis in the case. Second, the evidence supported the District Court’s ruling that common questions would predominate.