Case Information
*2 PAEZ, Circuit Judge:
The district court certified a class of former and current employees of U.S. Security Associates, Inc. (“USSA”), who allege that USSA committed numerous violations of California labor law. USSA filed a petition to appeal the district court’s certification order, which we granted. See Fed. R. Civ. P. 23(f). On appeal, USSA argues that the court erred in certifying the meal break sub-class, because the plaintiffs failed to establish “questions of law or fact common *3 to the class” that “predominate” over questions affecting only individual members. Fed. R. Civ. P. 23(a)(2), (b)(3). We hold that the district court did not abuse its discretion by certifying the meal break sub-class. Accordingly, we affirm.
I. BACKGROUND A.
Plaintiff Muhammed Abdullah is a former employee of USSA, a private security guard company. [1] USSA provides guards at over 700 locations in California, including hotels, In additiоn to Abdullah, the second amended complaint names three additional plaintiffs: Melissa Robinson, Christina Aguilar, and William Kimbrough. All four were employees of USSA for some period of time between 2007 and 2009.
hospitals, warehouses, and construction sites, among other locations. In addition to standing guard at such locations, USSA’s employees may perform a range of other duties, such as inspecting vehicles, patrolling properties, reacting to patient emergencies, clearing off railroad tracks, and recording damage to vehicles, among many other tasks. A large majority of USSA’s employees in California work at “single post” locations, meaning that no other guards are on duty at the same time.
As a condition of employment, all of USSA’s employees are required tо sign “on-duty meal period agreements.” The record contains two versions of such agreements. The first, which was used prior to 2007, provides:
Due to the nature of the work I perform as a Security Guard, and due to the nature of the services provided by U.S. Security Associates, Inc., I understand that my work prevents me from being relieved of all duty during my meal period. I am voluntarily agreeing to have my daily meal period “on duty.” I understand that I will be paid at my regular rate of pay for my on duty meal period. I understand that, if I elect to revoke this agreement, I may do so at any time, provided my revocation is in writing.
USSA’s “person most knowledgeable,” Leo J. Flury (“Flury”), initially testified at his deposition that 99.9% of employees work at single guard posts. He later changed his answer to say that “a large majority” of employees work at such posts.
The second, which USSA has used since mid-2007, provides:
Due to the nature of the work I perform as a Security Guard, and due to the nature of the services provided by U.S. Security Associates, Inc., I understand that I may be prevented from being relieved of duty during my meal period. On this basis, I voluntarily agree to have an “on-duty” meal period that shall be counted as time worked and compensated by U.S. Security Associates, Inc.
After five (5) hours worked, the following waiver becomes relevant:
Pursuant to paragraph 13 of Wage Order No. 4-2001 of the California Industrial Welfare Commission, Employee and Employer, as evidenced by their respective signatures below, hereby mutually agree to waive the right to an off-duty meal period for any hours worked in excess of five (5) total hours in a workday.
I understand that I may revoke this agreement at anytime in writing, and such revocation shall be presented to my Supervisor or Operations Manager at the beginning of the shift on which I first desire to revoke the agreement. I am voluntarily signing this agreement.
Flury testified that if an employee refuses to sign the “on- duty meal period agreement,” he or she “won’t work for us.” *5 6 A BDULLAH V . U.S. S ECURITY A SSOCIATES , I NC . He further testified that one of the “requirements” of the job, as evidenced by the meal-period “waiver,” was for USSA employees to eat meals on the job.
B.
The plaintiffs sought to maintain a class action on behalf of themselves and all others similarly situated, alleging that USSA committed numerous violations of California labor laws, including, inter alia , requiring them to work through their meal periods. Of note here, they allege that USSA has a “policy of requiring employees to work through their legally mandated meal periods,” and is therefore liable for “paying premium compensation for missed meal periods . . . pursuant to California Labor Code § 226.7 and the applicable [Industrial Welfare Commission] Wage Order.”
The district court certified the class and seven sub-classes, pursuant to Rule 23(b)(3). One of the sub-classes is the meal break sub-class, which is defined as:
A Subclass of all of Defendant’s past and present California Security Guard/Officer employees who worked more than six hours and were not provided a checked-out meal break in any work shift from July 1, 2007 through the present, and who were not compensated for such on-duty meal break(s) pursuant to California Labor Code § 226.7(b). The plaintiffs filed their initial complaint in the California Superior Court, and USSA removed the case to federal court pursuant to the Class Action Fairness Act. See 28 U.S.C. § 1332(d).
The district court determined that certifying this sub-class was appropriate, “[g]iven [USSA’s] uniform policy of requiring the putative subclass members to sign the on-duty meal break agreement,” as well as the “evidence that, in the vast majority of cases, this policy was implemented to require on-duty meal breaks be taken.” A few months later, the court reached the same conclusion in an order denying USSA’s motion for reconsideration. Having been granted leave to *6 appeal, USSA challenges the district court’s certification of the meal break sub-class on the grounds that the plaintiffs have not established “commonality,” as required under Federal Rule of Civil Procedure 23(a)(2), or “predominance,” as required under Rule 23(b)(3).
II. STANDARD OF REVIEW
We review a district court’s decision to certify a class
under Rule 23 for abuse of discretion.
In re Wells Fargo
Home Mortg. Overtime Pay Litig.
,
III. ANALYSIS
We are concerned here with
two overlapping
requirements for class certification. First, a party seeking
class certification must always show that “there are questions
of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2). Second, “the proposed class must satisfy at least
one of the three requirements listed in Rule 23(b).”
Wal-Mart
Stores, Inc. v. Dukes
,
overlap between the two tests”). We then turn to Rule
23(b)(3).
Hanlon v. Chrysler Corp.
,
A. Rule 23(a)(2)
“The Supreme Court has recently emphasized that
commonality requires that the class members’ claims ‘depend
upon a common contention’ such that ‘determination of its
truth or falsity will resolve an issue that is central to the
validity of each claim in one stroke.’”
Mazza v. Am. Honda
Motor Co.
,
Here, the district court concluded that “a common legal question that is presented and susceptible to class-wide determination” is whether California’s “nature of the work” exception to Industrial Welfare Commission (“IWC”) wage order No. 4-2001 (“Wаge Order No. 4-2001”)—which A BDULLAH V . U.S. S ECURITY A SSOCIATES , I NC . governs meal periods—“applies to [USSA]’s single guard post staffing model.” [5] USSA counters that this question will not generate a common answer, because USSA’s “nature of the work” defense requires “an individualized, fact-specific analysis” of each employee’s work history, including “a day- by-day examination of an employee’s job duties.” We therefore begin our Rule 23(a)(2) analysis by looking to state law to determine whether the plaintiffs’ claims—and USSA’s affirmative defenses—can yield a common answer that is “apt to drive the resolution of the litigation.” Wal-Mart , 131 S. Ct. at 2551; see also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds , 133 S. Ct. 1184, 1194–95 (2013) (“Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”). We conclude that they can.
1.
Under California law, an employer may not “require any employee to work during any meal . . . period mandated by an applicable order of the Industrial Welfare Commission.” Cal. Lab. Code § 226.7(a). [6] Wage Order No. 4-2001, in turn, guarantees certain employees a 30-minute meal period for [5] Wage Order No. 4-2001 regulates the wages, hours, and working conditions for “professional, technical, clerical, mechanical, and similar occupations.” Cal. Code Regs., tit. 8, § 11040. If the employer does so, it “shall pay the employee one additional hour
of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” Cal. Lab. Code § 226.7(b); see also Cal. Code Regs., tit. 8, § 11040, subd. 11(B).
*9 every five hours of work. [7] Cal. Code Regs., tit. 8, § 11040, subd. 11(A); see also Cal. Lab. Code § 512(a) (“An employer may not employ an employee for a work periоd of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.”). The employee must be “relieved of all duty” during this break; if not, the meal period is considered “on-duty,” and counts as time worked. The following three conditions apply to “on-duty” meal periods:
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.
Cal. Code Regs., tit. 8, § 11040, subd. 11(A). The parties do not dispute that the putative class members all signed a written agreement which provided that it could be revoked; their disagreement turns on whether USSA can defeat class certification by invoking the “nature of the work” exception to the off-duty meal period requirement. We first consider the substantive scope of duties that may qualify for the “nature of the work” exception, and we then consider two recent state court decisions addressing policies similar to the one in this case.
[7]
“The IWC’s wage orders are to be accorded the same dignity as
statutes.”
Brinker Rest. Corp. v. Superior Court
,
a.
The California state courts have not addressed the
substantive scope of the “nature of the work” exception.
[8]
The
California Division of Labor Standards Enforcement
(“DLSE”), however, has issued several opinion letters
addressing when the “nature of the work” exception may
apply. “The DLSE’s opinion letters, while not controlling
upon the courts by reason of their authority, do constitute a
body of experience and informed judgment to which courts
and litigants may properly resort for guidance.”
Brinker
,
[8] There are, however, several state court decisions that address whether the “nature of the work” exception can be decided on a class-wide basis under California Code of Civil Procedure § 382; we discuss those cases infra .
[9]
“The DLSE is the state agency empowered to enforce California’s
labor laws, including IWC wage orders.”
Brinker
,
[10]
USSA requests that we take judicial notice of certain documents,
including several DLSE Opinion Letters. “To the extent our opinion
references any of the materials, we grant [USSA’s] request[] for judicial
notice.”
Campbell v. PricewaterhouseCoopers, LLP
,
First, DLSE has emphasized that the “on-duty” meal period is a “limited[] alternative” to the off-duty meal period requirement. DLSE Opinion Letter 2009.06.09 at 8. Critically, it is “not described or defined as a waiver of an off-duty meal period,” id. (emphasis added), but rather as “a type of meal period that can be lawfully provided only in those circumstances in which the three express conditions set forth in [the regulation] are satisfied.” Id. Thus,
[i]n determining whether ‘the nature of the work’ prevents an employee from being relieved of all duty, [DLSE] starts with the premise that the general requirement for an off-duty meal period is remedial in nature, and any exception to that general requirement must be narrowly construed, so as to avoid frustrating the remedial purpose of the regulation.
DLSE Opinion Letter 2002.09.04 at 2. The employer has the burden to “establish[] the facts that would justify an on-duty meal period.” Id. at 2–3; see also DLSE Opinion Letter 2009.06.09 at 7; DLSE Opinion Letter 1994.09.28 at 4 (“In the view of the Division, the onus is on the employer to show that the work involved prevents the employee from being *11 relieved of duty.”).
[11] DLSE Opinion Letter 2009.06.09 concerned IWC Wage Order No. 9- 2001, subd. 11(C), Cal. Code Regs., tit. 8, § 11090, subd. 11(C), which applies to the transportation industry. Subdivision 11(C) contains the same three requirements for any on-duty meal period as Wage Order 4- 2001, subd. 11(A), cited in the text, supra at 11.
Second, we can characterize the instances in which DLSE has found that the “nature of the work” exception applies into two categories: (1) where the work has some particular, external force that requires the employee to be on duty at all times, and (2) where the employee is the sole employee of a particular employer. [12] For example, in its most recent opinion letter, DLSE concluded that employees who transport hazardous materials, and are required by federal regulation to attend to their vehicles at all times, are covered by the “nature of the work” exception. DLSE Opinion Letter 2009.06.09 at 8. It emphasized the narrow scope of its conclusion, however, explaining,
[W]e do not comment upon the application of the on-duty meal period requirements for any We do not—and cannot—hold that these are the only circumstanсes under which the “nature of the work” exception may apply. To the contrary, DLSE has laid out the following non-exhaustive factors that should be considered when deciding whether the “nature of the work” exception applies to a specific job:
(1) [T]he type of work, (2) the availability of other employees to provide relief to an employee during a meal period, (3) the potential consequences to the employer if the employee is relieved of all duty, (4) the ability of the employer to anticipate and mitigate these consequences such as by scheduling the work in a manner that would allow the employee to take an off- duty meal period, and (5) whether the work product or process will be destroyed or damaged by relieving thе employee of all duty.
DLSE Opinion Letter 2009.06.09 at 7. Thus, we make this observation solely to note the broad types of positions that DLSE has determined qualify for the “nature of the work” exception, as part of our limited inquiry into the merits of the plaintiffs’ claims.
A BDULLAH V . U.S. S ECURITY A SSOCIATES , I NC . period of time during which the driver is not engaged in activity that is regulated by the referenced federal regulations . . . . It may indeed be the case that drivers may be provided an off-duty meal period during these times even though they are otherwise prevented by the nature of their work from taking a meal period during times in which they are engaged in activity otherwise governed by the [federal regulations].
Id. DLSE further allowed for the possibility that another employee might be able to cover the driver, explaining.
Also, the nature of the work element may nоt be satisfied under circumstances where the employer may have another qualified representative reasonably available to perform the attending duties required under [federal regulation]. For instance, drivers who transport fuel in and around the Bay Area may likely park their vehicle at one of the Company’s yards and leave such vehicle unattended in compliance with federal law in order to take an off-duty meal period. Such a driver would not be entitled to an on-duty meal period if the nature of his or her work did not prevent the driver from being relieved of all duty.
Id. In another opinion letter, DLSE noted that the “nature of the work” exception might apply where the position involves “the continuous operation of machinery requiring monitoring” that is “essential to the business of the *13 employer.” DLSE Opinion Letter 1994.09.28 at 2.
In addition to these jobs, which by their nature require the employee to be present at all times, DLSE has also found that the “nature of the work” exception would apply to an “isolated” gas station “in which only a single employee is present,” but only if there was not “another employee employed at the worksite.” DLSE Opinion Letter 2003.11.03 at 3; see also DLSE Opinion Letter 1994.09.28 (noting that “the nature of the work” exception might apply where “the employee is the only person employed in the establishment and closing the business would work an undue hardship on the employer”). Cf. DLSE Opinion Letter 2002.09.04 at 2–3 In the same opinion letter, DLSE also considered whether the truck drivers could be required to “sign a blanket agreement for on-duty meal periods.” Id. at 3. DLSE concluded that they could, but emphasized thаt “each” on-duty meal period covered by the agreement must independently qualify for the “nature of the work” exception:
It is the opinion of the Division that the Company and employee may enter into a single agreement so long as the conditions necessary to establish that the nature of the employee’s work prevents the employee from being relieved of all duty are met for each applicable on-duty meal period taken.
Id. at 9 (emphasis added). Although not dispositive of any issue, DLSE’s response supports the plaintiffs’ argument that it is unlawful for USSA to impose a uniform policy of requiring “on-duty” meal periods, given USSA’s own admission that, “beyond the variation in general duties by post,” the guards’ day-to-day responsibilities also vary. (concluding that the “nature of the work” exception does not apply to late-night shift managers at fast-food restaurants, in part because other employees are on duty and could cover for the manager).
b.
With this understanding of the “nature of the work” defense, we turn to two recent state court decisions that guide our analysis of Rule 23(a)(2)’s commonality requirement. First, in Brinker , the California Supreme Court clarified multiple “issues of significance to class actions generally and to meal and rest break class actions in particular.” 273 P.3d at 520. Of particular importance here, the court in Brinker held that the California Court of Appeal had erred in reversing the superior court’s certification of a class of USSA argues that the district court applied the wrong legal standard because it initially cited one of the DLSE opinion lеtters for the proposition that “an off-duty meal period must be provided unless . . . the nature of the work makes it virtually impossible for the employer to provide the employee with an off-duty meal period.” DLSE Opinion Letter 2002.09.04 at 2. As USSA correctly argues, DLSE has rejected the “virtually impossible” standard as “narrow, imprecise, and arbitrary.” DLSE Opinion Letter 2009.06.09 at 7.
We disagree that the district court applied the wrong legal standard. As an initial matter, the district court did not “apply” any legal standard; it merely looked to the DLSE opinion letters as part of its preliminary inquiry into the merits, to determine whether class certification was appropriate. Furthermore, the district court clarified its initial ruling when it denied USSA’s motion for reconsideration, explaining that its previous citation to the “virtually impossible” standard “was not determinative in [its] analysis,” and that the “analytical role” it played “was merely to express that the showing necessary to establish the ‘nature of the work’ exception is a high one.” We are therefore satisfied that the district court applied the correct legal standard.
plaintiffs who alleged that their employer uniformly denied them rest breaks. Although the court’s analysis arose in the context of a representative action under California Code of Civil Procedure § 382, it also spoke to the liability that would arise under such a scenario:
[T]he Court of Appeal concluded that because rest breaks can be waived—as all parties agree—“any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that Brinker violated” the Labor Code and Wage Order No. 5. This was error. An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable . . . . . . . The theory of liability—that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment.
Id. at 531–32 (emphasis added).
The California Court of Appeal subsequently interpreted
and applied
Brinker
in a casе with strikingly similar facts to
the case before us.
See Faulkinbury v. Boyd & Assocs.
,
Brinker leads us . . . to conclude Boyd would be liable upon a determination that Boyd’s uniform on-duty meal break policy was unlawful . . . . [T]he employer’s liability arises by adopting a uniform policy that violates the wage and hour laws . Whether or not the employee was able to take the required break goes to damages . . . . A BDULLAH V . U.S. S ECURITY A SSOCIATES , I NC .
Id.
at 235 (emphasis added).
[15]
The court of appeal explicitly
rejected the defendant’s argument that the “nature of the
work” exception applied, concluding that, “by requiring
blanket off-duty meal break waivers in advance from
all
security guard employees, regardless of the working
conditions at a particular station,” the defendant itself “treated
the off-duty meal break issues on a classwide basis.”
Id.
at
234;
see also Bradley v. Networkers Int’l, LLC
, 150 Cal. Rptr.
3d 268, 284–85 (Cal. Ct. App. 2012),
as modified on denial
of reh’g
(Jan. 8, 2013) (“The lack of a meal/rest break policy
and the uniform failure to authorize such breaks are matters
of common proof.”),
review denied
(Mar. 20, 2013);
Bufil v.
Dollar Fin. Grp., Inc.
,
2.
In light of these state authorities, we conclude that the
plaintiffs’ claims will yield a common answer that is “apt to
drive the resolution of the litigation,” as required by Rule
23(a)(2).
Wal-Mart
,
meal break solely because no other guards are available to cover for them during their meal periods.
Consider, for example, the illustrative list of duties that USSA has provided to demonstrate the variety of its employees duties:
[T]he duties performed by security guards include patrolling parking lots; checking receipts; signing in and out trucks; setting up school parking lots and assisting with student drop-offs and pick-ups; inspecting vehicles; restraining unruly patients; escorting dead bodies; checking the inventory, mileage, and temperature of trucks; working undercover to catch shoplifters; monitoring psychiatric patients; checking in employees and answering phones at а front desk; performing surveillance; and enforcing hotel quiet hours.
These duties are undoubtedly distinct from one another, but *18 the only reason any of them “prevent” the employee from taking a meal period is because USSA has chosen to adopt a single-guard staffing model. See Cal. Code Regs., tit. 8, § 11040, subd. 11(A) (stating that an “on-duty” meal period is permitted “only when the nature of the work prevents an employee from being relieved of all duty” (emphasis added)).
In this way, the duties of USSA’s employees are distinct from, for
example, a truck driver who is required by federal regulation to attend to
his vehicle at all times, DLSE Opinion Letter 2009.06.09 at 7–8, or a
worker whose job involves the “continuous operation of machinery
requiring monitoring,” DLSE Opinion Letter 1994.09.28 at 2.
On this basis, we conclude that the merits inquiry will
turn on whether USSA is permitted to adopt a single-guard
staffing model that does not allow for off-duty meal
periods—namely, whether it can invoke a “nature of the
work” defense on a class-wide basis, where the need for on-
duty meal periods results from its own staffing decisions.
Such an inquiry is permissible under
Brinker
and
Faulkinbury
; the latter clarified that an employer may be held
liable under state law “upon a determination that [its] uniform
on-duty meal break policy [is] unlawful,” with the “nature of
the work” defense being relevant only to damages.
Faulkinbury
,
B. Rule 23(b)(3)
We next turn to Rule 23(b)(3), which asks if “the
questions of law or fact common to class members
predominate
over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b)(3) (emphasis added).
Although there may be “
some
variation” among individual
plaintiffs’ claims,
Local Joint Exec. Bd. of
Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.
,
1.
First, our analysis of the “nature of the work” exception, supra , drives our conclusion that Rule 23(b)(3) is satisfied here. Cf. Erica P. John Fund, Inc. v. Halliburton Co. , 131 S. Ct. 2179, 2184 (2011) (“Considering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.”). We have concluded that the “nature of the work” defense can, and will, be applied on a class-wide basis in this case. We offer no opinion on whether USSA’s “single-guard” staffing model will qualify for the “nature of the work” exception. [18] But “Rule 23(b)(3) requires [only] a showing that questions common to the class Indeed, the DLSE opinion letters do not provide a definite metric for deciding in what circumstances a lone employee may be permitted to take an on-duty meal break—for example, it is not clear if an employee must be (1) the sole employee on duty at a particular time, (2) the sole employee staffed at a particular location , or (3) the sole employee working for the employer in order to qualify for the “nature of the work” exception. Cf. DLSE Opinion Letter 2003.11.03 (concluding that the “nature of the work” exception would apply to an “isolated” gas station with “a single employee,” but not if “another employee [is] employed аt the worksite”); DLSE Opinion Letter 1994.09.28 (explaining that the “nature of the work” exception might apply where “the employee is the only person employed in the establishment and closing the business would work an undue hardship on the employer”).
*20
predominate, not that those questions will be answered, on
the merits, in favor of the class.”
Amgen Inc.
,
2.
We are mindful that it is an abuse of discretion for the
district court to rely on uniform policies “to the near
exclusion of other relevant factors
touching on
predominance.”
In re Wells Fargo
,
This case is not like In re Wells Fargo , Wang , or Vinole . First, unlike in those cases, federal or state exemption classifications—which may sometimes be fact-intensivе—are not at issue here. Cf. In re Wells Fargo , 571 F.3d at 959 (explaining that the “federal outside salesperson exemption” often “requires ‘a fact-intensive inquiry into each potential plaintiff’s employment situation’” (quoting the district court)); Vinole , 571 F.3d at 945 (explaining that under California law, “a court evaluating the applicability of the outside salesperson exemption must conduct an individualized analysis of the way each employee actually spends his or her time,” and the court’s “analysis of the FLSA exemption” is likewise “a fact-intensive inquiry” (emphasis added)).
Second, unlike in Wells Fargo and Vinole , the district court did not rely on the existence of USSA’s uniform on- duty meal period policy to the exclusion of other factors. To the contrary, the district court found that nearly all of the evidence in the record—including Flury’s testimony about USSA’s actual business practicеs, as well as the declarations of USSA’s employees—supports a finding that common questions would predominate. For example, the court found that Flury’s testimony described “more than a policy,” since he also explained how USSA’s “policies and practices are implemented on the ground.” In considering the employee declarations, the court found that “[n]one of these declarations establishes that the declarant was categorically *22 given off-duty meal breaks.” And, “[g]iven the uniform policy of requiring . . . the on-duty meal break agreement,” the court further found that, “in the vast majority of cases, this policy was implemented to require [that] on-duty meal breaks be taken.” In light of these findings, the district court properly concluded that the employee declarations “did not indicate a lack of predominance.” USSA nevertheless challenges the district court’s factual findings, particularly with regard to the employee declarations. USSA argues that it staffs its guards in groups “ranging from one guard per shift to up to 30 guards per shift and practically everything in between.” It further argues that “at many locations, ‘off-duty’ meal periods were provided.” But these arguments directly contradict the statements that Flury made during his deposition. Flury testified to three critical facts. First, he initially testified that 99.9% of employees work at single guard posts (he later changed his answer to say that “a large majority” of employees work at such posts). [19] Second, Flury testified that no single guard post allowed for a lunch break. (“I don’t know of any single post that has a lunch break as part of the program.”). Third, Flury made clear that such “on-duty” meal periods are required as a matter of policy—not necessity—explaining that one of the “requirements as signed to by the wavier” was for the guards to eat lunch at their posts. In fact, when asked if one USSA employee could relieve another for a meal period, Flury responded, “[b]ut then [the employee] wouldn’t be doing his job, would he? No.”
We agree with the district court that although USSA “may wish to distance itself from Flury’s statements, his admissions were material and [are] properly before us.” Furthermore, to the extent the employee declarations submitted by USSA are [19] We note that, although Flury changed some of his answers by errata, he did not change his statement that USSA’s business is “all made up of single posts.” As discussed supra , Flury stated in his deposition that the on-duty
meal period was part of the “nature of the business ,” but when asked for an example wherе “the nature of the work requires an on-duty meal break,” he could not think of one, other than a union site.
A BDULLAH V . U.S. S ECURITY A SSOCIATES , I NC .
not entirely consistent with Flury’s testimony, we defer to the
district court’s decision to weigh his testimony over the
employee declarations. We cannot say, in light of all the
evidence, that the district court’s findings of fact were
“illogical,” “implausible,” or “without support in inferences
that may be drawn from the facts in the record.”
See Hinkson
,
3.
Finally, USSA argues that individual issues will predominate because USSA’s “time records will not dispositively show which meal periods were ‘off duty’ meal periods” for any given employee. As a factual matter, however, USSA’s argument is again belied by the recоrd. Many of the employee declarations describe keeping records of their time worked. And, as the district court noted, “given Flury’s admission that those staffed at single guard posts were required to take on-duty meals, Defendant’s records of each employee’s clock-in and clock-out times, how much he was paid, and whether he was staffed at a single guard post, can be used to extrapolate whether his meal break was on- or off-duty.” For example, Flury testified that “for on-duty meal breaks, the sign-in sheets would just have a start time and end time.” In light of these records, it would not be difficult to determine USSA’s liability to individual plaintiffs, nor would it be overly-burdensome to calculate damages.
For the foregoing reasons, we conclude that the plaintiffs’
claims “will prevail or fail in unison,” as required by Rule
23(b)(3).
See Amgen Inc.
,
IV. CONCLUSION
In sum, we conclude that the district court did not abuse its discretion by certifying the meal break sub-class.
AFFIRMED.