Is the California courts’ pendulum swinging back to a more balanced approached to employment class action certification? In the last two days, two seemingly similar cases were decided with very different results:  Koval v. Pacific Bell (published opinion) and Augustus v. ABM Security Services, Inc.

In Koval, the Alameda court decided against certification of a putative class of service technicians who claimed that they were not totally relieved of their duties on meal or rest periods.  The appellate court affirmed the denial of certification.

In Augustus, the Los Angeles court decided to certify a class of security guards who claimed that because they were required to be on alert and respond during a rest break if certain safety or security issues occurred, they were not relieved of their duties during the breaks. In Augustus, the trial court also granted the plaintiffs’ summary judgment, took the case out of a jury’s hands and issued a $93 million dollar award. The appellate court reversed the summary judgment (vacating the $93 million award) and affirmed the class certification.

What is different about these two cases besides their outcomes (thus far), and what can we learn from them?

In Koval, the employer’s policies on which the plaintiff sought certification were written policies that were not distributed to employees, but delivered to the employees verbally by supervisors. While the written policies did include some limitations on employees during their meal and rest periods, the court held that the plaintiffs could not show that the policies were consistently and uniformly applied to the putative class because they were issued verbally by numerous supervisors. In Augustus, the policies on which the plaintiffs sought certification were published and provided to all of the putative class members and the employer’s representative testified that the policies were applied to all.

While one may want to conclude from the above that perhaps it is best not to have policies in writing, that is not the lesson here.  The takeaways for human resources and with regard to instituting policies from these cases are as follows:

  1. Company policies can and will be used against employers  – craft them carefully with a clear focus on compliance, and keep them as simple as possible.
  2. Train supervisors and provide them autonomy to run their business units.
  3. Have a communication strategy for delivering and discussing policies.

If litigation ensues, the key lessons from these cases are:

  1. The facts of the case and how they are presented very much matter.
  2. To be effective in the defense of a class action, an employer must have a strong, clearly delineated strategy from the outset that includes the presentation of documentary evidence, testimonial evidence and leveraging the law and procedure.
  3. Make sure company witnesses are properly prepared for depositions.
  4. The cost of wage-hour class actions can very quickly add up (because of penalties, generally)  to tens of millions of dollars – employers must act with urgency at the outset of a case, work closely with accomplished counsel to develop an offensive plan – and take control of the case.