Metropolitan News-Enterprise


Monday, April 8, 2002


Page 1


Court of Appeal Overturns Order Allowing Sav-On Employees’ Class Action on Overtime to Proceed


By a MetNews Staff Writer


A pair of Sav-On Drug Stores managers cannot bring a class action on behalf of hundreds of their fellow employees who did not receive overtime pay, this district’s Court of Appeal has ruled.

Div. Four Thursday overturned Los Angeles Superior Court Judge Irving S. Feffer’s order certifying a class made up of some 1,400 workers classified as “operating managers” or “assistant managers” at the company’s 300 retail stores.

The plaintiffs, Robert Rocher and Connie Dahlin, claim the company improperly treated them and their fellow class members as managerial employees exempt from overtime laws.

Presiding Justice Charles Vogel, in an unpublished opinion, said that class-action treatment was inappropriate because the proper characterization of each affected employee as exempt or non-exempt would depend on facts specific to that person.

“The fact that defendant has a common policy of treating all its OM’s and AM’s as exempt does not necessarily mean the common policy, when challenged in court, is either right as to all members of the class or wrong as to all members of the class,” Vogel said.

The presiding justice cited declarations submitted by Sav-on from more than 50 members of the putative class, which Vogel said showed substantial variances in actual duties. Under the requirements of the Industrial Welfare Commission, Vogel noted, a worker in the mercantile industry is overtime-exempt if “more than one-half of the employee’s work time” is spent “in work which is…intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment.”

The evidence submitted by Sav-on, the presiding justice elaborated, shows that its stores vary greatly in size, location, sales volume, hours of operation, and number of employees. These will affect the classification of employees, he explained, because if a store is small the managers will spend more time on non-managerial duties, whereas if it has many employees, a manager may spend a great deal of time interviewing, hiring, supervising and training.

Evidence submitted by the plaintiffs, Vogel contrasted, suggests that they and some other managers perform “mundane” work, but does not establish that those experiences are common to all employees in the OM or AM classifications.

Sav-on was represented in the Court of Appeal by W. Randolph Teslik, Joel M. Cohn, William A. Norris, Rex Heinke, L. Rachel Helyar, and Sandra M. Lee of Akin, Gump, Strauss, Hauer & Feld. Steven Drapkin filed an amicus brief for the Employers Group in support of Sav-On.

Matthew Righetti and Edward J. Wynne of Righetti Wynne and Scott A. Brooks and Craig S. Momita of Daniels, Fine, Israel & Schonbuch represented the plaintiffs. David Borgen and Laura L. Ho of Saperstein, Goldstein, Demchak & Baller filed an amicus brief for the Asian Pacific American Legal Center of Southern California, the Legal Aid Society of San Francisco—the Employment Law Center, La Raza Centro Legal, Inc., and the Women’s Employment Rights Clinic—Golden Gate University School of Law as amici in favor of class certification.

The case is Sav-on Drug Stores, Inc. v. Superior Court, B152628.


Copyright 2002, Metropolitan News Company