In Ghazaryan v. Diva Limousine, the California Court of Appeal reversed a trial court's denial of a class certification motion in a wage and hour class action. The Court of appeal ordered the trial court to certify two subclasses.
The plaintiff, a limousine driver, sued his employer, Diva Limousine alleging a failure to pay wages for on-call time between driving assignments and failure to provide rest breaks to drivers. The plaintiff defined two classes, all Diva drivers, and a subclass consisting of all Diva drivers who worked more than four hours without a rest break. Diva argued that the class was not ascertainable and had no common issues of fact because the drivers all used their on-call time differently. Some drivers ran personal errands, slept, worked out at the gym, and other personal uses. Other drivers did not have enough on-call time between calls for that type of activity.
The trial court denied certification for two reasons: 1) The class was not "ascertainable" because the court would have to reach the merits of the case (whether each driver was on-call and due compensation) to identify the class, and 2) there was no community of interest between the putative class members because of the differences in the way drivers spent their on-call time.
The Court of Appeal rejected both arguments. To begin with, the court held that a determination of ascertainability required only the evaluation of whether "the theory of recovery is amenable to class treatment," not whether the merits of the case actually provided liability. In short, it stated the trial court's only analysis should have been whether the plaintiff's defined class described a set of common characteristics sufficient to allow a putative class member to identify himself or herself as having a right to recover. In essence, the court rejected the argument that because an individualized assessment of fact would be required to determine liability, the class was not ascertainable.
The Court of Appeal also rejected the argument that there was no community of interest. It stated that the question before the trial court was not whether any individual driver was entitled to compensation for specific on-call time, but "the reasonableness of Diva's policies as applied to its drivers as a whole." Therefore, the class did have a common issue of fact and could be certified.
In the increasingly complex arena of wage and hour cases, Defendants have often relied on arguments stressing the individual component of employee behavior and the individual application of company-wide policies to defeat class certification. After Ghazaryan, Defendants may have to make a stronger showing that a class member would be unable to even identify whether they qualified for recovery because of individualized facts.