Moore v. Ulta Salon, Cosmetics & Fragrance, Inc.
311 F.R.D. 590
C.D. Cal.2015Background
- Sarah Moore sued Ulta (removed to federal court) on behalf of current and former non‑exempt California store employees, alleging Ulta required exit/bag inspections that produced unpaid "off‑the‑clock" time and thereby violated California wage-and-hour laws.
- Ulta handbooks/new‑hire materials require clear plastic bags, lockers, and exit inspections "anytime" an employee leaves the store; timekeeping rules require hourly employees to record time.
- Plaintiff produced declarations saying employees routinely clocked out (or were already off‑clock on breaks) and then waited (often several minutes) for a manager to perform the inspection and were not paid.
- Ulta produced many site‑level declarations claiming practices vary by store/manager, many inspections are brief or on‑the‑clock, and some managers sometimes adjust punches.
- The court focused on whether common questions (policy, employer control, compensable time, and employer knowledge) predominate and whether class treatment is manageable; it created four subclasses (rest‑break, meal‑break, end‑of‑shift, closing‑shift) to aid manageability.
- The court granted certification, appointed Moore as class representative, and appointed class counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification under Rules 23(a) & 23(b)(3) (numerosity, commonality, typicality, adequacy) | Ulta’s written policies and uniform implementation create common questions that can be proven classwide; numerosity met (~thousands); Moore typical and adequate. | Practices vary by store and manager; testimony shows many inspections occur on‑the‑clock; variation defeats commonality/predominance. | Certified. Numerosity, commonality, typicality, and adequacy satisfied; subclasses created to manage minor variations. |
| Whether time waiting for/undergoing exit inspections is "hours worked" under California law (control/suffered or permitted to work) | Exit inspections are required/permitted by company policy; employees were subject to Ulta’s control and often clocked out before inspections; employer knew or should have known, so time is compensable. | Policy does not uniformly require off‑clock inspections; employee choice and store variation mean individual inquiries on control and voluntariness. | Common proof can resolve whether the policy results in off‑clock work and whether Ulta knew or should have known; question is suitable for class adjudication. |
| De minimis defense (short, infrequent time not compensable) | Time estimates and regularity (policy requires inspections anytime employees leave) permit classwide evaluation of aggregate/average time and regularity; employer bears recordkeeping consequences. | De minimis applies individually because wait times vary and records of waiting do not exist; thus individualized inquiries predominate. | De minimis does not defeat certification; factors (difficulty of recording, aggregate time, regularity) are manageable (and can be handled by subclasses or later phases). |
| Damages (can damages be proven classwide; Comcast challenge) | Damages flow from liability theory; individualized damages do not defeat certification and can be calculated post‑liability by sampling, expert analysis, questionnaires, or a special master. | Lack of contemporaneous records and widely varying wait times makes damages calculation wholly individualized and incompatible with Comcast. | Comcast does not bar certification here; damages methodology need not be finalized at certification and can be managed after liability is established. |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (Rule 23 commonality requires a common contention capable of classwide resolution)
- Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455 (2013) (limits merits inquiries at certification to what is necessary to assess Rule 23 requirements)
- Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000) (California "hours worked" includes time employee is subject to employer control; compulsory travel/waiting compensable)
- Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012) (employer duty to provide/permit meal and rest periods; employer must relinquish control)
- Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir. 2013) (individualized damages generally do not defeat class certification in wage‑and‑hour cases)
- In re Wells Fargo Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir. 2009) (uniform corporate policies can weigh heavily in favor of predominance)
- Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984) (factors for de minimis time — administrative difficulty, aggregate amount, regularity)