Metropolitan News-Enterprise


Monday, May 13, 2013


Page 1


C.A. Expands Class Certification in Security Guards’ Suit


By a MetNews Staff Writer


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 Friday.

Div. Three, which had previously ordered class certification as to one of the plaintiffs’ three proposed subclasses, said all three subclasses should be certified as a result of a recent state Supreme Court decision.

The defendant is Boyd & Associates, Inc., which has offices in North Hollywood, Palm Desert, Santa Ana and Oxnard.

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 as mandated by the state Industrial Welfare Commission.

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, Orange Superior Court Judge Gail Andler concluded that it was “not clear...that the proposed classes are ascertainable” and that “it appears that individual questions of fact predominate.”

Three years ago, Div. Three said overtime subclass should have been certified. The panel upheld the denial of certification as to the meal-break and rest-break subclasses, finding substantial evidence that the company’s liability for failure to provide those breaks depended on employees’ individual circumstances.

The state Supreme Court subsequently granted review, holding the case pending its decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, which raised similar employee class certification issues. After deciding Brinker, the high court sent the Faulkinbury case back to the Court of Appeal for reconsideration.

Justice Richard Fybel, writing for Div. Three Friday, said all three subclasses should be certified, based on Brinker’s conclusion that where an employer is alleged to have violated wage-and-hour laws by implementing illegal policies, a class action is an appropriate means of challenging the policy, even if some employees were treated as exceptions.

With respect to meal breaks, the justice explained, Boyd’s defense relies on Industrial Welfare Commission regulations, that say 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. The legality of that requirement, the justice said, is appropriately determined on a classwide basis under Brinker.

“Indeed, by requiring blanket off‑duty meal break waivers in advance from all security guard employees, regardless of the working conditions at a particular station, Boyd treated the off‑duty meal break issue on a classwide basis,” he wrote.

He elaborated:

“In Faulkinbury I, we concluded that even if Boyd’s on‑duty meal break policy was unlawful, Boyd would be liable only when it actually failed to provide a required off‑duty meal break.  Brinker leads us now to conclude Boyd would be liable upon a determination that Boyd’s uniform on‑duty meal break policy was unlawful.”

Similarly, with respect to rest breaks, the plaintiffs’ claim that they and other class members were denied breaks, and the company’s lack of a rest-break policy in compliance with the law, made classwide certification appropriate under Brinker.

With regard to overtime, the panel reiterated its previous conclusion that the issues of whether the annual bonus and the gas and uniform allowance were wages are amenable to determination on a class-wide basis, since the company’s policies on those subjects are uniform.

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


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