in california then in just by counting the number of cases and if one had thought a couple years back when the california supreme court decided the brinker case which is the second time bernhard got got up that all was settled and put to rest indeed it was not obviously brinker had language in it sentence i think it's the famous page one thousand and fifty three of the california supreme court decision which said if the defendant has a policy or practice he was talking about off the clock work but from that courts were then left to try to decide could a policy a practice if it's legal and in the face of a policy manual and lawful therefore result in the situation where class could not be certified later in decisions including one from this court that it was recognized that there could be a de facto practice or policy  likely i can just kind of cut to the quick at least and get him to what i'm concerned about it seems to me on the commonality issue the real question here is whether the company forced its employees to to take either short or late meal breaks isn't that really the issue that we're wrestling with here no judge it is not ok to tell the saying is that the company wrote a or someone wrote a computer program or wrote a computer program and when the electronic computer punches for time were searched by that program it looked out for missed breaks in other words no punch out for lunch no punch back in and then lawfully we contend drop that one hours premium into everyone's paycheck but there were that is merely one of the three talking but we're we're talking about commonality here yes and in order for you to succeed you've got to show that it's a company wide practice that affects pretty much everybody right and in this particular case as i understand it the company had a practice of manually people can say this is what happened they would manually enter this into the payroll program they would get paid for whatever was but that there was no policy of forcing people to work through lunch and so on is that correct factually am i missing something what we're saying is that the computer program employee put down fifteen minutes twelve to twelve fifteen instead of twelve to twelve thirty there was no way in the system to catch that type of violation and the absence of that capability in the program  is what created the common practice which we allege to be unlawful we don't dispute who whether they were forced or not we simply say what the employees put down were conclusive and of course that's where back to my original discussion of where the law was evolving after brinker was decided on the issue of oh what were some of these breaks voluntary why you wanted to go home early to watch a baseball game or were they truly due to the press of is too much work for many customers not enough staffing and in the california supreme court justice ward are joined by justice lou wrote a concurring opinion saying we'll analogize and follow the time the unpaid overtime law as it was largely identical we copied out of the fair labor standards act and simply say that because the duty to record that time is on the employer the reasons why the break was missed must be also recorded and then last i believe july or the end of june i don't remember exactly which the second district court of appeal said indeed that concurrence is now the law of california if an employer has a record of short breaks or breaks starting after the fifth hour or missing breaks it also has a duty to record the reasons why because imagine if we were to form a company we were on the board of directors and we were to have a system basically you're creating that you're creating your complaint based on the technology rather than on now where we are under safeway vons which is now the latest statement of california law and order lou concurrence whether manual or computerized if there is a missing break if there is a foreshortened break which is i think we found an average of just under two per paper area and in the facts of this case in each of the monthly pay periods if that happens the employer has to record this was press a business or no this was the employee who suggesting that safeway vons as you call it relying on justice lose concurrence is the law that applies in this case where the actions or inactions occurred long before that case the answer is your honor that partly after the violations occurred after that case occurred but it wasn't creating new law it was the word or lou concurrence didn't create new law it said based on the statutes the employer has to have a record if it wants to use or you're saying that before it's just as blue wrote his concurrence an employer was obligated to have a record based upon then law have a record to explain why each employee didn't receive exactly what the law requires and you're saying i absolutely are and the reason is because it it it for example in clemens pottery and other fair labor standards case when the supreme court said yes there are now is the duty of an employer to record have some record of what the real work hours are not what the have old fashioned time cards where it's the employee's duty to enter the data as that employee experiences his or her times office cetera et cetera is that what you're saying not exactly whether manual or computer or the employer has to punch their hours and we're saying here what's in the record is the hours it's the actual hours but this is lawyers and if i understood it correctly of this employer provided notify the employees if you have time that's let us know we'll take care of it and they had a program out of program that people who would enter the data and they would be compensated for what is on an individual basis in that interim no no because i think judge ort where we're  disconnect is we're saying everything the employees entered in fact was correct ok and if it's all correct on their timecards the fifteen people sampled over a little more than a year there were eighty six of those either for shortened or late breaks for which the premiums were not paid premiums were always paid by the system when a break was missed completely and in the situation where the breaks are short or late if an employer does not record the reasons and wants to use the voluntariness defense you you never have a have a class are you going to get back to the soft yes like the software problem if i understand you correctly you're saying there was a software glitch in this program and even though the employee in are the correct hours there was a certain mathematical percentage of the hours that were injured that were incorrect right no no no the hours were always correct ok then for example if the programmer had had had made a mistake in another line of code in paid ninety five percent of where he was when they paid we would be saying there was an error in a software system you have to show that the employer that the words were back the software helpful software was wrong yet wire has to pave based on a commonality from your perspective correct if software for example was calculating the overtime rate at one point four there was nothing wrong with this really  nothing wrong with the software software it was one hundred percent accurate when i understand you say it is the problem with the software is that it didn't just spit out an explanation for the failure to pay identify them the employer could say maybe i want to pay and maybe i don't want to pay for the completely missed breaks that drop the premiums and everybody's paycheck but for the other two types of violations there was no way of tracking  to give an explanation to the employer judge in if you went back in time and keep pushing i probably should and i'm using my my time up but if you went back and saw the history of her the narrow holding of the fourth district court of appeal in san diego that got reversed was the notion that because the duty was on the employee to record the reason for the miss for break i e voluntary wanting to watch the baseball game vs too much press of business that is an individual ised uncommon issue and therefore as a matter of law we must the sort of fire affirm the denial of certification that's the actual holding in brinker that was reversed by the supreme court that the employer has the duty not only to track the irregularity in other words mr or late breaks but also as to where we are today with bonds and safeway the duty to report why it's like almost in the securities case because it's an issue on which the employer has the burden of proof almost like an affirmative defense it's presumed that the break was missed due to the press of business unless it can come forward with its record for that day showing no no no the employee well i think i think that's exactly exactly right there is a presumption that it was voluntary at least from the employer's point us and i mean i i don't disagree with what actually that under the law the holding of safeway vons is the presumption is the bit the mystery or break problem was due to the present business  and in this case as i understand it there was no requirement that the employees take extended or they were short and the lunch breaks were shortened and therefore though and i'm sure there was no compulsion they didn't have to do it well it's it's yes that's true if you're compelled then it's not a voluntary break in essence and what happened in safeway vons is there were thousands i think of might have been in the middle that was so many employees and so many hours that there were many many many great instances that the computer data showed were short missing or late and the supermarket chain had no record and wanted to use the defense that had been unsuccessful in opposing counsel good morning deal dixon for jenny craig the company has a payment policy in the policy is to be paid for all hours were worked the issue of the premium is the premium is paid when it's owed it's true that the computer system that is used to record the time and generate paychecks gives an automatic our premium if someone does not take a lunch during  the legal requirement here under brinker and all the cases after is that the employer in this case jenny craig has to provide the opportunity to take the break brinker in the other cases have made it clear that not taking  a late break taking a short break that's not a violation of the labor code it's question whether it's require right whether it's required yeah otherwise if opinion is required absolutely right yes and win it and what the plaintiff would like to do in this case is make several leaps  one of the points that i wanted to raise is this is this is a new argument that was raised for the first time in the motion for reconsideration when classification was denied if it were timely argument there is no requirement that jenny krag provide the written policy for what potential remedies exist if you miss a meal break or if you take a leap or if you have a short break and then the issue really does become is it required that someone could take a twenty nine minute lunch break that would appear to not meet the thirty minute requirement but there are cases that allow this to minimize difference and if they don't call it a violation you don't get the one hour premium because you couldn't keep track of twenty nine minutes now if the employer said hey i know it's only been twenty nine minutes but you need to cock back in because you have work to do that's a very different story this really assumes violations to even get to the issue of late the issue of the payment system as a policy was raised late in the certification process and i gather that was in order to try to deal with the commonality issue  yes and it was raised in the motion for reconsideration option for reconsideration said the company has an affirmative duty to tell employees what their potential remedy is if they miss a break and that's what the briefs in this case of been about the only thing that this could be in there are some of the cases cited that a failure to have any policy at all that pays for late missed breaks or short breaks could be a violation of unfair competition law but that's not what this is about this is about me on respirators and labor code he wants a class certified contradicts the claims that were made in the complaint itself then what are the particular allies that questions as you see  being facts questions that are presently before us it only deals with i don't think there is a fact question i think it's a question of law of whether or not there is some new obligation that no court in the past has imposed on an employer if you want to look at the facts the only facts that are relevant right now are what are the policies that the company has for notifying employees that they can get paid premium time and you have a system that pays people if they miss the break and you also have a manual system where people including the plaintiff herself submit manual edits and say my time wasn't right those are all individualized of course all individual here here it goes the argument was that over there were individual ice questions because the employees could have done something manually to address these two types of other breaker regularities not completely missed but the late or the short and we we urge the court to look again in the director of the excerpt of records page one forty seven one forty eight one forty nine look at those forms those are forms to briefly i'd like to know where is the commonality here the commonality was a common system that didn't track two of the three types of break as a software issue yes or record the reasons why even tho those lines of code could have been in there that then would have meant that met the employer's bird and no one doubts that a different computer systems used and so you know it was the same computer system through you agree with what opposing counsel said that this issue as currently frame was not raised until your motion for reconsideration on the commonalities no we disagree your honor and where and why on the record was arranged before that time the the answer is that the motion for reconsideration we all know courts retain jurisdiction once they certify a class to decertify class but once a class has not been certified as long as the facts are not changed if there is a new law