In a significant decision that provides support for employers who are pushing back against plaintiffs’ attempts to litigate unmanageable wage and hour claims on a class-wide basis, a California federal court denied a motion for class certification in Ordonez v. RadioShack, Inc., a putative class action on behalf of current and former retail sales associates asserting a variety of claims, including claims for missed meal and rest breaks. The court denied plaintiff’s earlier motion for class certification on the grounds that some evidence of short, skipped, or late meal breaks could not answer the critical liability question of why the break was skipped, late or short, on a class-wide basis.

Plaintiff’s renewed motion for class certification focused on a written rest break policy that provided “one paid 15-minute break for every four hours worked.”  In addition, plaintiff submitted declarations from 19 putative class members stating that they had not been provided a second rest break on shifts lasting more than six hours, but less than eight hours.  On this basis, the court stated the policy was, on its face, “likely inconsistent” with California law.  The court found the rest break claims in Ordonez similar to the rest break claims in Brinker Restaurant Corp. v. Superior Court, in which the California Supreme Court ruled that a uniform written rest break policy, which was held (rather than simply alleged) to be facially unlawful under the substantive law regarding rest breaks, justified certification of the rest break subclass. 

Nevertheless, the Ordonez court denied class certification based on predominance and manageability concerns under Rule 23(b)(3).  In reaching its conclusion, the court quoted Erica P. John Fund, Inc., v. Halliburton Co., in which the U.S. Supreme Court stated: “Considering whether ‘questions of law or fact common to class members predominate’ begins. . . with the elements of the underlying cause of action,” and Abdullah v. U.S. Security Associates, Inc., in which the Ninth Circuit noted that “it is an abuse of discretion for the district court to rely on uniform policies to the near exclusion of other relevant factors touching on predominance.”  The Ordonez court held that the mere existence of a uniform and facially unlawful rest break policy was insufficient for class certification. Because of the lack of reliable records showing the actual timing of rest breaks, there was no way the court could determine whether – and, if so, to what extent – the employer’s policy “was actually implemented” unlawfully on a class-wide basis.  Notably, the court held that the employer’s rest break schedules “[a]t most, reflect when RadioShack scheduled rest breaks for its employees,” not when rest breaks were actually taken. 

Plaintiff’s renewed motion for certification was therefore denied, “because a class action would devolve into a series of individualized inquiries as to who did and did not receive the appropriate amount of rest breaks, regardless of the content of the facially invalid policy.”  The Ordonez court then noted two other recent California federal court decisions that had reached similar results in cases alleging rest break violations based on a stated uniform policy.  Cummings v. Starbucks Corp. and In re Taco Bell Wage and Hour Actions

For all of these reasons, the newest Ordonez decision provides additional support for the argument that the mere existence of a uniform policy that is, on its face, unlawful, is an insufficient basis for class certification where the case would necessarily devolve into individualized inquiries and thus be unmanageable.  The reasoning in Ordonez would apply, even more so, in putative class actions where there is insufficient evidence of the existence of an express and facially unlawful policy in the first instance.  Thus, to determine whether class certification is appropriate, the threshold inquiry is whether the plaintiff has presented substantial evidence both (i) that a uniform and express employer policy exists and (ii) that the policy is facially unlawful.  But the inquiry cannot end there.  Under Ordonez, and other federal district court decisions cited therein, the court must go further and examine also whether there is sufficient evidence to determine, on a class wide basis, that the policy was actually implemented unlawfully.