Decision: In Green v. Federal Express Company, a FedEx employee filed a putative class action alleging, inter alia, failure to pay overtime on the grounds that FedEx failed to pay its employees for the time between when the employees “clocked in” to the time they started their scheduled shift and from the time they ended their shift to the time they “clocked out” and for failing to pay employees for working through meal periods. The US Court of Appeals for the Ninth Circuit affirmed the California district court’s denial of class certification, holding that the plaintiff had failed to establish that the employees were under FedEx’s control during the time they were on the clock but not on-shift because she could not establish that FedEx has a uniform policy preventing its employees from using that time for their own benefit. As a result, plaintiff could not satisfy the requirements of Federal Rule of Civil Procedure 23(b)(3), because individual fact inquiries concerning FedEx’s control of each employee would predominate over any common questions. The court also affirmed the denial of certification of plaintiff’s meal break class holding that the only common method of proof offered by the plaintiff—electronic scans of packages during designated meal breaks—did not show that FedEx knew or should have known that its employees were working during break periods because: (i) Fed Ex did not regularly review the electronic date; and (ii) FedEx was not required to police meal breaks, such that it “had no obligation to sift through the volumes of electronic data produced by the scanning devices to determine whether its employees were actually taking their authorized breaks.”

Impact: The Ninth Circuit’s decision reaffirms the strength of employer defenses to class certification in meal period classes under the California Supreme Court’s decision in Brinker. It also reinforces the importance of having legally compliant wage and hour policies and practices. Absent a uniform policy or practice that is legally non-compliant, plaintiffs face an uphill battle in persuading courts that they satisfy the requirements of Federal Rule of Civil Procedure 23, especially the requirement that common issues of fact and law predominate.