Metropolitan News-Enterprise


Friday, June 25, 2010


Page 1


C.A. Orders Class Certification in Security Guard Suit

Individual Issues Predominate as to Overtime Claim, Panel Says




A lawsuit charging a company that employs security guards throughout Southern California with failing to pay correct amounts of overtime must be certified as a class action, the Fourth District Court of Appeal ruled yesterday.

Div. Three partially reversed Orange Superior Court Judge Gail Andler’s order denying class certification in the action against Boyd & Associates, Inc., which has offices in North Hollywood, Palm Desert, Santa Ana and Oxnard. The panel ordered that a class be certified of employees whose overtime premium was allegedly calculated on the basis of an amount that was less than their actual rate of pay.

In an opinion by Justice Richard Fybel, however, the court upheld Andler’s conclusion that claims the company failed to provide meal and rest breaks cannot not be litigated on a class-wide basis because there are predominant individual issues.

The plaintiffs, Josie Faulkinbury and William Levene, brought their action on behalf of about 4,000 past and present employees of Boyd. They claimed that while employed by the company several years ago—Faulkinbury for about 13 months and Levene for a little over two years—they were denied the right to take meal and rest breaks.

They also claimed that a gasoline allowance and a uniform maintenance allowance amounting to 70 cents per hour, along with a nondiscretionary bonus paid annually to employees who had been at the company for more than 12 months, should have been treated as wages for overtime purposes.

In denying class certification, Andler concluded that it was “not clear...that the proposed classes are ascertainable” and that “it appears that individual questions of fact predominate.”

 Fybel, writing for the Court of Appeal, said there was substantial evidence that the company’s liability for failure to provide meal breaks depends on employees’ individual circumstances.

Under Industrial Welfare Commission regulations, the justice explained, an employer is not required to provide off-duty meal breaks “when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.”  

Boyd, Fybel noted, requires all of its employees to sign on-the-job meal period agreements, and presented evidence that it provides different levels of security service at many different types of locations, so employees’ meal arrangements vary from location to location.

Some employees must work alone and are unable to leave their posts to eat, some work with another employee and can take off-duty breaks, some are able to leave their posts during periods of inactivity, some are relieved by other Boyd’s employees at mealtime, and yet others are able to eat because they are relieved by employees of the client, the justice explained.

Besides, Fybel wrote, “[a] class-wide determination that the nature of the work exception did not apply to security guards employed by Boyd would not in itself result in liability against Boyd,” because the court would still have to determine which individual employees actually took on-duty breaks instead of off-duty breaks mandated by law.

Similarly, with respect to rest breaks, “evidence showed that Boyd had no formal policy denying off‑duty rest breaks or requiring employees to waive them,” and declarations submitted by both sides showed that practices varied according to individual circumstances, the justice wrote. He distinguished a Court of Appeal ruling allowing a claim for failure to provide rest breaks to go forward, noting that the employer in that case had “a common policy of denying rest breaks and failing to pay for them.”

As to overtime, however, the denial of class certification was an abuse of discretion, Fybel said, because the issues of whether the annual bonus and the gas and uniform allowance were wages are amenable to determination on a class-wide basis. The company’s arguments on overtime, he said, relate primarily to the merits and not to whether a class should be certified.

Fybel also noted that the trial judge, in her order denying the motion, did not distinguish among the three proposed classes and made no findings suggesting that the overtime issue specifically could not be resolved in a class action.

The case is Faulkinbury v. Boyd & Associates, Inc., G041702.


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