Labor & Employment Law Blog

Claims asserting violations of California's wage and hour laws are frequently if not predominantly brought as class actions. One of the most hotly litigated issues in such cases is the issue of whether the case should or should not be certified as a class, which nearly always turns on whether common issues of law and fact predominate over individual issues. Two recent Court of Appeal decisions emphasizing that plaintiffs seeking class certification carry the burden of showing that liability can be established based on common proof (i.e., proof applicable to all of the class members) may be helpful to employers opposing class certification.  

As we previously reported here, in Arenas v. El Torito Restaurants, et al., the Court of Appeal affirmedThe court stated: "Based on the record presented, the plaintiffs have not demonstrated that resolution of the common issues of act and law will be accomplished by common proof that can be extrapolated to all class members. Instead, the plaintiffs have demonstrated that the case is replete with individual factual issues." the trial court's denial of class certification based on the trial court's finding that plaintiffs failed to meet their burden of showing that common issues of law and fact predominate over individual issues. 

On May 26, 2010, in Bomersheim v. Los Angeles Gay and Lesbian Center, the Court of Appeal reversed the trial court's denial of class certification based on the Court of Appeal's holding the claims were susceptible of susceptible to common proof. The Court of Appeal held that based on the unique facts of that case the issue of whether the defendant's alleged negligent medical treatment of patients who presented with a confirmed syphilis infection or reported sexual contact with persons known or suspected to be infected with syphilis proximately caused injury or other damages was susceptible to common proof. The Court reasoned that whether the Centers patients underwent retesting and retreatment as a result of having been allegedly mistreated or for other reasons was susceptible to common proof because the Center's own records would tend to show the reason why a particular patient underwent retesting and retreatment. 

We think various wage and hour claims frequently are not susceptible to common proof. For example, we think an individual employee's reasons for not taking a rest period or a meal period will seldom be reflected by an employer's records or by other evidence applicable to all of the class members and for that reason would not be susceptible to common proof.