Filed 11/21/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

NIVIDA LUBIN et al.,

Plaintiffs and Appellants,

 v.

THE WACKENHUT 

CORPORATION,

Defendant and Respondent.

 B244383

 (Los Angeles County

 Super. Ct., JCCP No. 4545.)

APPEAL from an order of the Superior Court of Los 

Angeles County, William F. Highberger, Judge. Reversed and 

remanded. 

Weinberg, Roger & Rosenfeld, Emily P. Rich, Theodore 

Franklin, Manuel A. Boigues; Posner & Rosen, Howard Z. Rosen,

Jason C. Marsili, Brianna M. Primozic; James R. Hawkings, 

James R. Hawkings, and Gregory E. Mauro, for Plaintiffs and 

Appellants.
2

Gibson Dunn & Crutcher, Theodore J. Boutrous, Jr.,

Theane Evangelis, Bradley J. Hamberger, Jennifer E. Rosenberg;

Gordon & Rees, Stephen E. Ronk, Mollie Burks-Thomas, and 

Michelle L. Steinhardt for Defendant and Respondent.

Horvitz & Levy, John A. Taylor, Jr., Felix Shafir, and 

Robert H. Wright for Chamber of Commerce of the United States 

of America, National Association of Security Companies, and 

California Association of Licensed Security Agencies as Amici 

Curiae on behalf of Defendant and Respondent. 

___________________________

Appellants Nivida Lubin, Sylvia M. Maresca, and Kevin 

Denton (together plaintiffs) filed this action on behalf of 

themselves and similarly situated persons, alleging defendant

and respondent The Wackenhut Corporation (Wackenhut)1

violated California labor laws by failing to provide employees

with off-duty meal and rest breaks and by providing inadequate 

wage statements. The trial court initially granted plaintiffs’ 

motion for class certification. However, as the case approached 

trial, the United States Supreme Court reversed a grant of class 

certification in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 

338 (Wal-Mart). Relying on Wal-Mart, Wackenhut moved for 

decertification. The trial court granted the motion. Plaintiffs 

appeal, contending that decertification was not warranted by a 

change in circumstances or case law and that the court used 

improper criteria in granting the motion for decertification. We 

 

1

In 2010, the Wackenhut Corporation officially changed its 

name to G4S Secure Solutions (USA) Inc. 
3

conclude that the trial court erred in granting the motion. 

FACTUAL AND PROCEDURAL SUMMARY

Wackenhut is an international security solutions company,

employing thousands of private security officers who are assigned 

to provide physical security services to a variety of clients, 

including commercial businesses, governmental entities, gated 

communities, industrial facilities, oil refineries, banks, 

warehouses, medical clinics, schools, and retail centers. In 

California, Wackenhut delivers security services from eight area 

branch offices: San Diego, Orange County, Los Angeles, San 

Fernando Valley, Riverside, San Jose, San Francisco, and 

Sacramento. These offices are overseen by general managers, 

who report to a single regional vice-president responsible for the 

California region. 

Plaintiffs are former security officers employed by 

Wackenhut. In the operative pleading, they allege that 

Wackenhut violated the California Labor Code by failing to 

provide off-duty meal periods, failing to authorize and permit offduty rest breaks, and providing inadequate wage statements. 

Employers generally are required to provide a 30-minute off-duty 

meal break for employees working more than five hours. (Cal. 

Code Regs., tit. 8, § 11040, subd. (11)(A).) An on-duty meal 

period is permitted only when the nature of the work prevents an 

employee from being relieved of all duty and the parties agree in 

writing to an on-duty paid meal break. The written agreement 

must include a provision allowing the employee to revoke it at 

any time. (Ibid.) Labor Code Section 226, subdivision (a)

requires employers to provide an accurate itemized wage 

statement in writing to each employee. Among other things, the 

statement must show the total hours worked by the employee, 
4

the inclusive dates of the period for which the employee is paid, 

all applicable hourly rates in effect during the pay period, and the 

corresponding number of hours the employee worked at each 

hourly rate.

Prior to class certification, plaintiffs moved to compel 

production of the on-duty meal agreements for all Wackenhut 

security officers working in California. The trial court denied the 

motion, finding the production would be burdensome and 

oppressive. Its denial was without prejudice to “further, more 

specific requests or interrogatories.” In September 2009, 

plaintiffs, on behalf of themselves and all others similarly 

situated, moved for class certification. Their motion proposed the 

following five subclasses: “(a) All non-exempt Security Officers 

employed by Wackenhut in California from January 7, 2001 

through on or about May 23, 2008 who at the time of hire did not 

sign an on-duty meal period agreement that stated that the 

Security Officers could revoke the agreement and who were not

provided with an off-duty meal period; [¶] (b) All non-exempt 

Security Officers employed by Wackenhut in California during 

the Class Period to work at one-officer posts and who, in 

accordance with the agreement between Wackenhut and its 

clients, were not provided an off-duty meal period; [¶] (c) All 

non-exempt Security Officers employed by Wackenhut in 

California during the Class Period to work at posts with multiple 

officers and who, in accordance with the agreement between 

Wackenhut and its clients, were not provided an off-duty meal 

period; [¶] (d) All non-exempt Security Officers employed by 

Wackenhut in California during the Class Period who were not 

authorized and permitted to take rest breaks; [and] [¶] (e) All 

non-exempt Security Officers employed by Wackenhut in 
5

California who were not provided itemized wage statements 

during each pay period of the Class Period that contained all 

information specified in Labor Code section 226, subd. (a).” 

On March 3, 2010, the trial court granted plaintiffs’ motion, 

certifying the class as “‘all non-exempt Security Officers 

employed by Wackenhut in California during the Class Period of 

January 7, 2001 to the present,’”

2

excepting proposed subclasses

which the court found were unascertainable. Plaintiffs 

propounded an interrogatory on March 10, 2010, asking

Wackenhut to provide the date on which each class member

signed a meal period agreement that included revocation 

language. In a tentative ruling on May 6, 2010, the court stated 

that “[m]erits discovery in a certified class action which involves 

as many current and former employees as this case will 

inevitably be burdensome and time consuming. The parties may 

want to consider whether an agreement for statistically valid 

sampling might be acceptable in lieu of full discovery.” 

On November 19, 2010, Wackenhut objected to plaintiffs’ 

interrogatory as unduly burdensome and instead offered 

plaintiffs a reasonable opportunity to inspect responsive 

documents. After several meet and confer sessions between 

November 2010 and January 2011, the parties agreed to use 

statistical sampling in lieu of document production or inspection. 

They entered into a stipulation under which Wackenhut agreed 

not to challenge the sampling on the grounds that a less than 

statistically significant number of personnel files were sampled 

or that there was a bias in the sample. Wackenhut “reserve[d] all 

rights to challenge, contest, dispute and/or object to the original 

 

2 The class consists of approximately 10,000-13,000 security 

officers. 
6

1,200 files selected by Plaintiffs for sampling as being an 

inappropriate sample for any [other] reason.” 

On June 20, 2011, the United States Supreme Court 

reversed a class certification order in Wal-Mart, supra, 564 U.S. 

338. Subsequently, on September 23, 2011, Wackenhut moved 

for decertification, citing Wal-Mart as a significant change in law 

justifying reconsideration of class certification. In their 

opposition to Wackenhut’s motion, plaintiffs again proposed five 

subclasses as a way to obviate some of the concerns raised in 

Wackenhut’s motion.3 

Following hearings on Wackenhut’s motion, the trial court 

directed Wackenhut to submit a proposed order granting

decertification. Before the court entered a formal order, the 

 

3 Plaintiffs proposed the following five subclasses: “(1) 

INVALID MEAL PERIOD AGREEMENT SUBCLASS: All nonexempt Security Officers employed by Wackenhut in California 

from January 7, 2001 through on or about May 23, 2008 who did 

not sign a valid on-duty meal period agreement and worked at a 

post with an on-duty meal period; [¶] (2) SINGLE-OFFICER 

SITE SUBCLASS: All non-exempt Security Officers employed by 

Wackenhut in California during the Class Period at single-officer 

sites with an on-duty meal period; [¶] (3) MULTI-OFFICER 

SITE SUBCLASS: All non-exempt Security Officers employed by 

Wackenhut in California during the Class Period at multi-officer 

sites with an on-duty meal period; [¶] (4) REST PERIOD 

SUBCLASS: All non-exempt Security Officers employed by 

Wackenhut in California during the Class Period who were 

required to remain at their post during their on-duty meal period; 

[¶] [and] (5) ITEMIZED WAGE STATEMENT SUBCLASS: All 

non-exempt Security Officers employed by Wackenhut in 

California who were not provided itemized wage statements 

during each pay period of the Class Period that contained all 

information specified in Labor Code section 226, subd. (a).” 
7

California Supreme Court issued its decision in Brinker 

Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004

(Brinker), resolving issues in the handling of wage and hour class 

certification motions. The parties stipulated to further briefing 

on application of Brinker and decertification of the class. The 

court conducted an additional hearing on the Brinker briefings

but declined to modify its previous ruling decertifying the class. 

The court’s order granting Wackenhut’s decertification motion 

stated two main bases for its ruling: (1) that individualized 

issues predominated; and (2) that there was no way to conduct a 

manageable trial of plaintiffs’ claims.

4 The order was entered on 

August 1, 2012. An order denying certification to an entire class 

is an appealable order. (Linder v. Thrifty Oil Co. (2000) 23 

Cal.4th 429, 435.)

This timely appeal followed. 

DISCUSSION

I

A. Standard of Review

“The party advocating class treatment must demonstrate 

the existence of an ascertainable and sufficiently numerous class, 

a well-defined community of interest, and substantial benefits 

from certification that render proceeding as a class superior to 

the alternatives. [Citations.] ‘In turn, the “community of interest 

requirement embodies three factors: (1) predominant common 

questions of law or fact; (2) class representatives with claims or 

defenses typical of the class; and (3) class representatives who 

 

4 Because the trial court issued an extensive 24-page order, 

we discuss the specific reasoning for granting decertification as to 

each claim in the pertinent discussion subsection. 
8

can adequately represent the class.”’ [Citation.]” (Brinker, 

supra, 53 Cal.4th at p. 1021.)

The factor at issue in this appeal is predominance. “The 

‘ultimate question’ the element of predominance presents is 

whether ‘the issues which may be jointly tried, when compared 

with those requiring separate adjudication, are so numerous or 

substantial that the maintenance of a class action would be 

advantageous to the judicial process and to the litigants.’ 

[Citations.] The answer hinges on ‘whether the theory of 

recovery advanced by the proponents of certification is, as an 

analytical matter, likely to prove amenable to class treatment.’ 

[Citation.] A court must examine the allegations of the complaint 

and supporting declarations [citation] and consider whether the 

legal and factual issues they present are such that their 

resolution in a single class proceeding would be both desirable 

and feasible. ‘As a general rule if the defendant’s liability can be 

determined by facts common to all members of the class, a class 

will be certified even if the members must individually prove 

their damages.’ [Citations.]” (Brinker, supra, 53 Cal.4th at pp.

1021-1022, fn. omitted.)

Any party may file a motion to decertify a class. (Cal. 

Rules of Court, rule 3.764(a)(4).) In Green v. Obledo (1981) 29 

Cal.3d 126, 147, the California Supreme Court held that “a class 

should be decertified ‘only where it is clear there exist changed 

circumstances making continued class action treatment 

improper.’ [Citation.]” (Id. at p. 148; see also Weinstat v. 

Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1226

[decertification requires new law or newly discovered evidence 

showing changed circumstances].) The court also pointed out

that “if unanticipated or unmanageable individual issues do 
9

arise, the trial court retains the option of decertification.” (Savon Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 335 

(Sav-on).)

We review a decertification order for abuse of discretion. 

(Brinker, supra, 53 Cal.4th at p. 1022; Sav-On, supra, 34 Cal.4th 

at p. 326.) A trial court ruling supported by substantial evidence 

generally will not be disturbed unless improper criteria were 

used or erroneous legal assumptions were made. (Sav-On, at pp. 

326-327.) “An appeal from an order denying class certification 

presents an exception to customary appellate practice by which 

we review only the trial court’s ruling, not its rationale. If the 

trial court failed to conduct the correct legal analysis in deciding 

not to certify a class action, ‘“an appellate court is required to 

reverse an order denying class certification . . . , ‘even though 

there may be substantial evidence to support the court’s order.’”’ 

[Citation.] In short, we ‘“consider only the reasons cited by the 

trial court for the denial, and ignore other reasons that might 

support denial.” [Citation.]’ [Citations.]” (Alberts v. Aurora 

Behavioral Health Care (2015) 241 Cal.App.4th 388, 399

(Alberts).)

“Nearly a century ago, the Legislature responded to the 

problem of inadequate wages and poor working conditions by 

establishing the [Industrial Welfare Commission (IWC)] and 

delegating to it the authority to investigate various industries 

and promulgate wage orders fixing for each industry minimum 

wages, maximum hours of work, and conditions of labor. 

[Citations.] Pursuant to its ‘broad statutory authority’ [citation], 

the IWC in 1916 began issuing industry-and occupation-wide 

wage orders specifying minimum requirements with respect to 

wages, hours, and working conditions [citation]. In addition, the 
10

Legislature has from time to time enacted statutes to regulate 

wages, hours, and working conditions directly. Consequently, 

wage and hour claims are today governed by two complementary 

and occasionally overlapping sources of authority: the provisions 

of the Labor Code, enacted by the Legislature, and a series of 18 

wage orders, adopted by the IWC. [Citations.]” (Brinker, supra,

53 Cal.4th at p. 1026.) “[T]he IWC’s wage orders are entitled to 

‘extraordinary deference, both in upholding their validity and in 

enforcing their specific terms.’ [Citation.]” (Id. at p. 1027.) 

“[T]he meal and rest period requirements [at issue] ‘have long 

been viewed as part of the remedial worker protection 

framework.’ [Citation.] Accordingly, the relevant wage order 

provisions must be interpreted in the manner that best 

effectuates that protective intent.” (Ibid.)

B. Wal-Mart

The trial court found that Wackenhut’s decertification 

motion was supported by changed circumstances because the 

Supreme Court decision in Wal-Mart, supra, 564 U.S. 338 created 

significant new case law, warranting a reassessment of class 

certification. We begin with a brief overview of Wal-Mart, then 

address each of plaintiffs’ claims and the court’s application of 

Wal-Mart in its decertification order. 

Wal-Mart, supra, 564 U.S. 338, involved class certification 

of some 1.5 million current and former female employees, 

alleging that their employer, Wal-Mart, discriminated against 

them based on sex by denying them equal pay and promotions, in 

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as 

amended, Title 42 United States Code section 2000e-1 et seq. 

(Wal-Mart, at p. 343.) The Supreme Court reversed class 

certification because the plaintiffs did not offer significant proof 
11

that Wal-Mart operated under a general policy of discrimination. 

(Id. at p. 353.) “The only corporate policy that the plaintiffs’ 

evidence convincingly establishe[d was] Wal-Mart’s ‘policy’ of 

allowing discretion by local supervisors over employment 

matters”; and even as to that, the plaintiffs could not identify “a 

common mode of exercising discretion that pervade[d] the entire 

company.” (Id. at p. 355, italics omitted.)

Also at issue in Wal-Mart was the means by which the 

plaintiffs planned to establish liability and damages. Plaintiffs 

proposed to select a sample of class members for whom liability 

and damages would be determined. (Wal-Mart, supra, 564 U.S.

at p. 367.) The percentage of those sample claims deemed to be 

valid would then be extrapolated to the remaining class and 

multiplied by the average back pay award in the sample set to 

determine the entire class recovery. (Ibid.) The Supreme Court 

disapproved this method, which it termed “Trial by Formula,” 

finding it would prevent Wal-Mart from litigating its statutory

defenses to individual claims. (Ibid.) Under Title VII, once a 

plaintiff makes a prima facie showing of discrimination, the 

burden shifts to the employer, which may avoid liability by 

showing that it took an adverse employment action against the 

employee for some reason other than discrimination. (Wal-Mart,

at p. 366.) 

As discussed below, the trial court’s reliance on Wal-Mart

to support decertification for each of plaintiffs’ claims 

overextended holdings in that case. The crux of Wackenhut’s 

motion for decertification and the court’s subsequent order was 

Wal-Mart’s treatment of statistical sampling, even though 

statistical sampling had been introduced only in relation to one of 

plaintiffs’ three claims, the meal period claim. Thus, although 
12

the court had urged the parties to consider using statistical 

sampling to make the class action more manageable as to the 

meal period claim, it determined that this method was

disapproved in Wal-Mart.

After the trial court issued its decertification order, the 

Supreme Court clarified that Wal-Mart does not “stand for the 

broad proposition that a representative sample is an 

impermissible means of establishing classwide liability.” (Tyson 

Foods, Inc. v. Bouaphakeo (2016) ___ U.S. ___, ___ [136 S.Ct. 

1036, 1048] (Tyson).) “A representative or statistical sample, like 

all evidence, is a means to establish or defend against liability. 

Its permissibility turns not on the form a proceeding takes—be it 

a class or individual action—but on the degree to which the 

evidence is reliable in proving or disproving the elements of the 

relevant cause of action.” (Id. at p. 1046.) Thus, “[w]hether and 

when statistical evidence can be used to establish classwide 

liability will depend on the purpose for which the evidence is 

being introduced and on ‘the elements of the underlying cause of 

action[]’ [citation].” (Ibid.) In Tyson, a case involving a class of 

employees claiming that they did not receive statutorily 

mandated overtime pay for time spent “donning and doffing 

protective gear,” the court upheld the use of statistical evidence 

to calculate the additional time class members spent donning and 

doffing, even though differences in the type of gear worn meant 

that plaintiffs may have taken different amounts of time to don 

and doff. (Id. at pp. 1042, 1048-1409.) The court distinguished 

Wal-Mart, explaining that “[w]hile the experiences of the 

employees in Wal-Mart bore little relationship to one another, in 

this case each employee worked in the same facility, did similar 

work, and was paid under the same policy. . . . [U]nder these 
13

circumstances the experiences of a subset of employees can be 

probative as to the experiences of all of them.” (Tyson, supra, at 

p. 1048.) 

Here, statistical evidence was proposed only for the limited 

purpose of determining how many employees had signed on-duty

meal agreements lacking revocation language during the class 

period. Plaintiffs already had established through deposition 

testimony that Wackenhut required all employees to sign on-duty 

meal agreements; that prior to 2004, most of the meal 

agreements lacked the required revocation language; that

between 2004 and 2008 only new employees signed meal 

agreements with revocation language; and that it was only in

2008 and thereafter that all employees signed meal agreements 

with the required revocation language. As in Tyson, under these 

circumstances the percentage of the subset of employees who 

signed meal agreements lacking the required revocation language 

during a given time period is probative as to the percentage of the 

class that signed meal agreements lacking the required 

revocation language. Although, as Tyson has made clear, WalMart does not prohibit the broad use of statistical sampling in 

class action lawsuits, as we discuss below, the decision whether 

to allow statistical evidence ultimately is within the discretion of 

the trial court. 

Throughout its order the court also found that 

individualized inquiries were necessary because, pursuant to

Wal-Mart, Wackenhut was entitled to defend by proving that, 

even if plaintiffs presented evidence that it had a general policy 

of not providing valid meal or rest breaks, in practice some 

employees were afforded an off-duty meal or rest break. This 

rationale misapplies Wal-Mart. In Wal-Mart, the Supreme Court 
14

found that plaintiffs failed to present evidence establishing the 

existence of a common policy of discrimination. In this case, 

when it originally certified the class, the trial court found that 

plaintiffs had presented sufficient evidence that Wackenhut had

policies and practices that violated wage and hour laws. Because 

plaintiffs met their burden of establishing a common policy, 

whether an individual was permitted to take a valid meal or rest 

break on any given day is a question of damages. (See Brinker, 

supra, 53 Cal.4th at p. 1022 [“‘As a general rule if the defendant’s 

liability can be determined by facts common to all members of the 

class, a class will be certified even if the members must 

individually prove their damages’”].) 

The distinctive nature of Title VII liability also 

distinguishes Wal-Mart from the facts of this case. 

Individualized inquiries were necessary in Wal-Mart because 

under Title VII, once the plaintiff has made a prima facie 

showing of a discriminatory action, the burden shifts to the 

defendant to show that the adverse employment action was made 

for a nondiscriminatory employment reason. A defendant’s right 

to prove that an adverse employment action as to a specific 

employee was taken for a nondiscriminatory reason, will

necessarily have to be individualized. The wage order governing 

meal and rest breaks at issue in this case does not have the same 

individualized burden-shifting mechanism as Title VII. If

plaintiffs have made a showing that Wackenhut had a policy or 

practice that violated California wage and hour laws, any defense 

asserted by Wackenhut can also be presented on a classwide 

basis. (See Bradley v. Networkers International, LLC (2012) 211 

Cal.App.4th 1129, 1150 (Bradley) [employer’s defense that meal 
15

and rest break policy was legally sufficient was also matter of 

common proof].) 

II

A. Meal Period Claim

IWC wage order No. 4-2001, codified in California Code of 

Regulations, title 8, section 11040, subdivision (11)(A), governs 

an employer’s obligation to provide meal breaks to hourly 

security guard employees. (Faulkinbury v. Boyd & Associates, 

Inc. (2013) 216 Cal.App.4th 220, 233 (Faulkinbury).) Under that 

order, “[n]o employer shall employ any person for a work period 

of more than five (5) hours without a meal period of not less than 

30 minutes, except that when a work period of not more than six 

(6) hours will complete the day’s work the meal period may be 

waived by mutual consent of the employer and the employee. 

Unless the employee is relieved of all duty during a 30-minute 

meal period, the meal period shall be considered an ‘on duty’ 

meal period and counted as time worked. 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).) 

“An employer’s duty with respect to meal breaks . . . is an 

obligation to provide a meal period to its employees. The 

employer satisfies this obligation if it relieves its employees of all 

duty, relinquishes control over their activities and permits them 

a reasonable opportunity to take an uninterrupted 30-minute 

break, and does not impede or discourage them from doing so.” 

(Brinker, supra, 53 Cal.4th at p. 1040.) 
16

Wackenhut’s standard practice was to have all new security 

officers sign an on-duty meal agreement during orientation. It 

then allowed its clients to determine whether Wackenhut 

security officers would be provided an on-duty or off-duty meal 

period at each site. The vast majority of clients preferred to 

provide on-duty meal periods. 

In its decertification order, the trial court explained that it 

previously had found that common questions predominated as to 

plaintiffs’ meal period claim because evidence supported 

plaintiffs’ allegation that Wackenhut had a uniform practice of 

allowing clients to decide whether meal periods would be on-duty 

or off-duty, rather than Wackenhut performing the required 

analysis of determining whether the nature of the work at each 

site prevented employees from being relieved of all duties for 

their 30-minute meal period. The court explained that plaintiffs’ 

theory was no longer viable because, pursuant to Wal-Mart, the 

question of how the employer decides which meal period to 

provide is not a “‘common contention’ that when answered will

‘resolve an issue that is central to the validity of each one of the 

[class members’] claims in one stroke.’ (Wal-Mart, supra, [564 

U.S. at p. 350].)” 

The trial court also found the testimony of Wackenhut 

managers was not sufficient to prove that in every case class 

members were provided with on-duty meal periods. Instead, the 

evidence only supported the conclusion that as a general matter, 

Wackenhut managers intended to provide on-duty meal periods 

at most, although not all, worksites.5 

 

5

In a footnote, the court commented that “[i]n fact, the class 

as certified includes several worksites whose employees [were] 

undisputedly . . . provided with off-duty meal periods.” We note 
17

Accordingly, the court found that liability depended on an

individualized assessment of the meal periods taken by each class 

member at each site. The court explained that individual 

inquiries were necessary pursuant to Wal-Mart because 

Wackenhut had a “right to defend itself by proving that, in 

practice, even at worksites that typically had on-duty meal 

periods, some class members were actually authorized to take offduty meal periods, as evidence in the record suggest[ed].”6

 

In Brinker, the court instructed that for purposes of class 

certification, the focus must be on the policy the plaintiffs are 

challenging and whether the legality of that policy can be 

resolved on a classwide basis. (Brinker, supra, 53 Cal.4th. at pp. 

 

that had the court granted plaintiffs’ proposed subclasses, the 

outlier sites that provided off-duty meal periods (example: the 

San Francisco Conservatory of Music and Cricket 

Communications) would have been excluded from the class. 

6

The trial court cited to four employee declarations and one 

deposition as evidence that in practice some class members were 

authorized to take off-duty meal periods. However, in three of 

the declarations (those of Chowdhary, Call, and Kotov), the class 

members stated they were permitted to leave the premises or 

take their lunch where they wanted but that they understood 

they needed to be available to respond or assist in case of an 

emergency. (See Brinker, supra, 53 Cal.4th at p. 1040 

[employer’s duty to provide off-duty meal period satisfied if 

employer relieves “employees of all duty, relinquishes control 

over their activities and permits them a reasonable opportunity 

to take an uninterrupted 30-minute break, and does not impede 

or discourage them from doing so”].) The deposition was of 

named plaintiff Nadin, who stated that on occasion, when she 

was relieved from her position working at City Hall East, she 

could leave to buy lunch.
18

1023-1024.) The court then considered the scope of an employer’s 

duties under the relevant statutes and the IWC wage orders to 

afford rest and meal periods to employees. (Id. at pp. 1027-1028.) 

Regarding the meal period claim, the court concluded that “an 

employer’s obligation when providing a meal period is to relieve 

its employee of all duty for an uninterrupted 30-minute period”

and that an employee “‘must be free to attend to any personal 

business he or she may choose during the unpaid meal periods.’” 

(Id. at pp. 1036, 1038, italics added.) Thus, the employee must be 

free to leave the premises. (Ibid.)

Here, rather than focusing on whether plaintiffs’ theory of 

liability as described in their complaint – that Wackenhut 

violated wage and hour requirements by not providing officers 

with off-duty meal periods – was susceptible to common proof, the 

court focused on whether individualized inquiries would be 

required to determine whether in practice, officers ever received 

an off-duty meal period. (See Benton v. Telecom Network 

Specialists, Inc. (2013) 220 Cal.App.4th 701, 725 (Benton) [trial 

court employed improper criteria by focusing on whether 

individualized inquiry required to determine which technicians 

missed meal and rest periods, rather than focusing on plaintiffs’ 

theory of liability, that employer violated wage and hour 

requirements by failing to adopt a meal and rest period policy].) 

Wal-Mart, supra, 564 U.S. at page 350, requires class 

claims to depend on a common contention which “must be of such 

a nature that it is capable of classwide resolution – which means 

that determination of its truth or falsity will resolve an issue that 

is central to the validity of each one of the claims in one stroke.” 

Here, plaintiffs’ theory at class certification was based on a 

common contention: that Wackenhut violated California labor 
19

laws by failing to provide employees with off-duty meal periods. 

This violation resulted from Wackenhut’s policy of requiring all 

employees to sign on-duty meal agreements and allowing client 

preference to dictate whether an employee had an off-duty or onduty meal period, rather than itself determining, as the 

employer, whether the nature of the work at each site prevented

its employees from having an off-duty meal period. Whether 

plaintiffs’ theory has merit is a common question that is “capable 

of classwide resolution.” (Ibid., see Faulkinbury, supra, 216 

Cal.App.4th at p. 234 [employer’s blanket policy requiring all new 

employees, regardless of individualized job duties, to sign an onduty meal agreement is a classwide issue].) 

Nor was the trial court correct in determining that WalMart required individualized inquiries. In Brinker, supra, 53 

Cal.4th at page 1022, the California Supreme Court explained 

that “‘[a]s a general rule if the defendant’s liability can be 

determined by facts common to all members of the class, a class 

will be certified even if the members must individually prove 

their damages.’” California appellate authority subsequent to the 

trial court’s decertification order makes clear that, in the context 

of meal breaks, whether a specific employee actually had a valid 

meal break on a given day is a question of damages, and does not 

preclude class certification. “Under the logic of [Brinker’s] 

holdings, when an employer has not authorized and not provided 

legally required meal and/or rest breaks, the employer has 

violated the law and the fact that an employee may have actually 

taken a break or was able to eat food during the workday does 

not show that individual issues will predominate in the 

litigation.” (Bradley, supra, 211 Cal.App.4th at p. 1151, italics 

omitted.) 
20

In Alberts, supra, 241 Cal.App.4th at page 407, the Court of 

Appeal held the trial court erred in requiring, at the certification 

stage, that plaintiffs demonstrate a “‘universal practice’ on the 

part of management to deny nursing staff the benefit of the 

Hospital’s written break policy” and that the proper question was 

“whether plaintiffs had articulated a theory susceptible to 

common resolution.” (Ibid.) Alberts explained that requiring 

plaintiffs to prove class members missed all breaks to which they 

were entitled was an “incorrect standard for certification that, as 

other courts have also found, if correct, would prevent 

certification of virtually any wage and hour class. (See, e.g., Bufil 

v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 

1207 (Bufil) [‘a class is not inappropriate merely because each 

member at some point may be required to make an individual 

showing as to eligibility for recovery’]); Benton, supra, 220 

Cal.App.4th at pp. 725–728 [reversing order denying certification 

despite evidence that some putative class members received 

breaks].)” (Alberts, at p. 407.) 

As Faulkinbury, supra, 216 Cal.App.4th at page 235

explains, “the 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, 

and ‘[t]he fact that individual [employees] may have different 

damages does not require denial of the class certification motion.’ 

[Citation.]” 

1. Nature of the Work Exception

A key issue driving the court’s decertification order on the 

meal period claim was its finding that Wackenhut’s affirmative 

defense, the nature of the work exception, could not be 

adjudicated on a classwide basis, even if the class were divided 
21

into subclasses as proposed by the plaintiffs, because common 

issues did not predominate. The nature of the work exception 

has three express conditions: (1) the nature of the work must 

prevent the employee from being relieved of all duty; (2) the 

employee must agree to the on-duty meal period in writing; and 

(3) the written agreement must provide that the employee may, 

in writing, revoke the agreement at any time. (Cal. Code Regs., 

tit. 8, § 11040, subd. (11)(A).) The nature of the work exception is 

an affirmative defense, and thus the burden is on the employer to 

plead and prove facts justifying on-duty meal periods. (Abdullah 

v. U.S. Security Associates, Inc. (9th Cir. 2013) 731 F.3d 952, 958-

959 (Abdullah).) 

In the class certification order, the court found that 

common questions predominated because plaintiffs had shown

Wackenhut had a uniform practice allowing clients to determine 

whether to provide on-duty meal periods, but in its decertification 

order, the court concluded that whether Wackenhut allowed 

client preference to dictate whether an officer was provided an 

on-duty meal period was not the correct inquiry. Rather, the 

court concluded, even if Wackenhut had not made a 

determination whether the nature of the work prevented its 

employees from taking an off-duty meal period before allowing its 

clients to provide on-duty meal periods, it still was entitled to 

prove at trial whether on-duty meal periods actually were 

permissible due to the nature of the work. 

In analyzing whether the nature of the work permitted onduty meal periods, the trial court found that “because the duties 

and work environments differ dramatically amongst the class, 

the nature of the work performed by Wackenhut security officers 

[could not] be resolved on a classwide basis.” In reaching its 
22

determination, the court considered a five factor test outlined by 

the Division of Labor Standards Enforcement (DLSE),

7

noting 

that California courts have yet to delineate the scope of the 

nature of the work exception. The five factors are (1) the type of 

work; (2) the availability of other employees to provide relief to 

an employee during a meal period; (3) potential consequences to 

the employer if the employee is relieved of all duty during the 

meal period; (4) the ability of the employer to anticipate and 

mitigate the consequences; and (5) whether work product or 

process will be destroyed or damaged by relieving the employee of 

all duty. The court explained that this was not an exhaustive list 

of factors and that the “‘critical determination . . . whether an onduty meal period may be lawfully provided by an employer is 

whether the employer can establish that the facts and 

circumstances in the matter point to the conclusion that the 

nature of the work prevents the employee from being relieved of 

all duty.”’ 

Plaintiffs argued that the differences among the class 

members were not significant because all security officers 

“‘observe, patrol, protect, assist, and report’” and that differences 

in duties performed by class members did not prevent Wackenhut 

from taking steps to relieve class members of all duty for a 30-

minute meal period. The court found that the DLSE test could 

not be applied on a classwide basis because even if class members 

 

7

“‘The DLSE “is the state agency empowered to enforce 

California’s labor laws, including IWC wage orders.”’ [Citation.] 

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.”’”’ [Citations.]” (Brinker, 

supra, 53 Cal.4th at p. 1029, fn. 11.)
23

shared some basic duties, Wackenhut “presented substantial 

evidence illustrating the profound differences among the various 

worksites and the nature of the work performed by its security 

officers.” 

Citing an opinion letter from the DLSE, the court also 

found that plaintiff’s theory that Wackenhut could relieve 

workers at almost every work site was “based on the incorrect 

premise that if an employer can theoretically remake its business 

operations to provide an off-duty meal period, it should be 

required to do so and precluded from taking advantage of the 

nature of the work exception.” The court also noted that even if 

plaintiffs’ theory were correct, an analysis of what steps 

Wackenhut could have taken to provide off-duty meal periods 

would require numerous individualized inquiries. 

Finally, the court found that plaintiffs’ proposed subclasses 

did not make their meal-break claim more amenable to classwide 

treatment because the subclasses did not “eliminate the need for 

numerous individualized inquiries to determine whether the 

nature of the work performed by class members allowed for onduty meal periods.” 

Two appellate decisions in class action cases particularly

have analyzed the nature of the work defense in the context of 

the DLSE opinion letter: Faulkinbury, supra, 216 Cal.App.4th 

220 and Abdullah, supra, 731 F.3d 952. Neither was available to 

the trial court in this case since both were published after the 

court granted Wackenhut’s decertification motion. Each clarifies

the scope of the nature of the work defense in the class action 

context. In Faulkinbury, as here, the plaintiffs were employees 

who worked for a private security guard company, Boyd. Boyd

provided security services to a range of clients, including gated 
24

residential communities, hospitals, commercial buildings, and 

retail stores. (Faulkinbury, at p. 225.) The plaintiffs alleged that 

when hired, they had to sign an agreement to take on-duty meal 

periods, and that they never took an off-duty meal break. “As a 

defense to class certification, Boyd asserted the nature of the 

work exception.” (Id. at p. 234.) In response, plaintiffs argued 

“[l]iability turns on the issue whether Boyd’s policy requiring all 

security guard employees to sign blanket waivers of off-duty meal 

breaks is lawful. That issue can be resolved on a classwide basis.” 

(Ibid.)

In light of Brinker, the Court of Appeal found that whether 

Boyd’s policy requiring all security guard employees to sign 

blanket waivers of off-duty meal breaks was lawful “can be 

resolved on a classwide basis.” (Faulkinbury, supra, 216 

Cal.App.4th at p. 234.) This is because “by requiring blanket offduty meal break waivers in advance from all security guard 

employees, regardless of the working conditions at a particular 

station, Boyd treated the off-duty meal break issue on a classwide 

basis.” (Id. at p. 234.) “Whether or not the employee was able to 

take the required break goes to damages, and “‘[t]he fact that 

individual [employees] may have different damages does not 

require denial of the class certification motion.”’ [Citation.]” (Id. 

at p. 235.)

In Abdullah, supra, 731 F.3d 952, the Ninth Circuit 

reached the same conclusion in a case with strikingly similar 

facts. There, a class of private security guards working for U.S. 

Security Associates, Inc. (USSA) alleged violations of California 

labor laws. (Id. at pp. 954-956.) USSA guards worked at over 

700 locations in California, including hotels, hospitals, 

warehouses, and construction sites. (Id. at p. 954.) USSA 
25

challenged the district court’s certification of a meal period

subclass on the grounds that the plaintiffs had “not established 

‘commonality,’ as required under Federal Rule of Civil Procedure 

23(a)(2), or ‘predominance,’ as required under Rule 23(b)(3).” (Id. 

at p. 956.)

After noting that California courts had not addressed the 

substantive scope of the “nature of the work” exception, the Ninth 

Circuit reviewed several DLSE opinion letters concerning the 

parameters of that exception. (Abdullah, supra, 731 F.3d at pp.

958-959.) The court explained that the “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.’” (Abdullah, at p. 959, fn. 

omitted.) The court identified two categories of work where the

DLSE has found that the “nature of the work” exception applies: 

“(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.” 

(Ibid.) 

The court concluded that “the plaintiffs’ claims [would]

yield a common answer that [was] ‘apt to drive the resolution of 

the litigation,’” as required by Federal Rules of Civil Procedure, 

rule 23(a)(2) and Wal-Mart, supra, 564 U.S. at pages 349-350. 

(Abdullah, supra, 731 F.3d. at p. 962.) The court explained:

“[T]he DLSE letters make clear that ‘the showing 

necessary to establish the “nature of the work”
26

exception is a high one.’ In order to make such a 

showing, USSA had to demonstrate not just that its 

employees’ duties varied, but that they varied to an 

extent that some posts would qualify for the ‘nature 

of the work’ exception, while others would not. It 

failed to do so. Indeed, USSA’s sole explanation for 

why it requires on-duty meal periods is that its 

guards are staffed at single-guard locations. It does 

not argue that any particular posts would qualify for 

the ‘nature of the work’ exception absent the singleguard staffing model. In fact, when asked if he could 

think of ‘examples’ where ‘the nature of the work 

requires an on-duty meal break,’ [USSA’s person 

most knowledgeable] testified that he could not. 

Thus, the crux of the issue is that the class members’ 

duties do not allow for a 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 
27

psychiatric patients; checking in employees and 

answering phones at a front desk; performing 

surveillance; and enforcing hotel quiet hours.

“These duties are undoubtedly distinct from one 

another, but 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)).

“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, [supra,] 216 

Cal.App.4th at [p.] 235. Thus, the legality of USSA’s 

policy is a ‘significant question of law,’ Mazza [v. Am. 

Honda Motor Co. (2012)] 666 F.3d [581,] 589, that is 
28

‘apt to drive the resolution of the litigation’ in this 

case, Wal-Mart, [supra, 654 U.S.] at [pp. 349-350].” 

(Abdullah, supra, 731 F.3d at pp. 962-963, fns. 

omitted.)

Wackenhut, as the employer, was required to provide 30-

minute off-duty meal periods to its employees. Because 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” (Cal. Code Regs., tit. 8, § 11040, 

subd. (11)(a)), it is the employer’s obligation to determine 

whether the nature of the work prevents an employee from being 

relieved before requiring an employee to take an on-duty meal 

period.

In this case, Wackenhut, not its clients, is the employer and 

hence was responsible for determining whether the nature of the 

work at each site prevented its employees from being relieved of 

all duty during the meal break. Wackenhut offered no evidence 

that it made the determination on the basis of the five-factor test 

required by the DLSE: the “type of work, the availability of other 

employees to provide relief to an employee during a meal period, 

the potential consequences to the employer if the employee is 

relieved of all duty, 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 

break, and whether the work product or process will be destroyed 

or damaged by relieving the employee of all duty.” (Dept. 

Industrial Relations, DLSE Opn. Letter No. 2002.09.04 (Sep. 4, 

2002) p. 2.) Rather, the record indicates that Wackenhut allowed 
29

client preference to dictate whether officers were provided onduty or off-duty meal periods. Client preference cannot be 

determinative under the wage order. In the 2002 DLSE opinion 

letter, the department concluded that “an off-duty meal period 

must be provided unless [the five] factors, taken as a whole, 

decisively point to the conclusion that the nature of the work 

makes it virtually impossible for the employer to provide the 

employee with an off-duty meal period.” (Id. at p. 2.) Thus, 

plaintiffs’ claim that Wackenhut’s common practice of allowing 

client preference to dictate whether meal periods were on-duty or 

off-duty, resulting in the vast majority of plaintiffs receiving onduty meal periods in violation of IWC wage order No. 4-2001, is 

amenable to class treatment. 

Wackenhut cannot discharge its duty by arguing that its 

clients who requested on-duty meal periods determined that the 

nature of the work prevented officers from being relieved of all 

duty. A similar issue was discussed in Benton, supra, 220 

Cal.App.4th at page 729. In that case the court concluded that 

an employer’s “affirmative obligation to authorize and permit 

meal and rest breaks” could not be discharged, even if a coemployer staffing company had adopted a lawful meal and rest 

break policy, in the “absence of any evidence showing that [the 

employer] took steps to ensure that the staffing company had 

such a policy in place.” (Ibid.) We agree with that analysis. 

Thus, Wackenhut could not discharge its affirmative duty to 

provide lawful meal and rest breaks without presenting evidence 

that it had precautions in place to ensure that its clients 

considered and applied the five-factor test outlined by the DLSE 

in determining whether the “nature of the work” at each site 
30

necessitated an on-duty meal period before requiring class 

members to take such meal periods.8

Wackenhut also has failed to show that individual issues 

predominate in this case. Plaintiffs argue that the nature of the 

work defense can be litigated on a classwide basis by showing 

 

8 The general manager of Wackenhut’s San Diego branch 

office and former acting general manager of the Orange County 

and Long Beach branches testified in deposition that the decision 

whether to provide an on-duty or off-duty meal period is directed 

by the client, and that if the client says that an off-duty meal 

period is not acceptable he [the Wackenhut manager] does not 

discuss with the client why an off-duty meal period is not 

acceptable. The general manager of the San Francisco and San 

Jose branches testified that Wackenhut does discuss with clients 

which type of meal periods will be provided to Wackenhut 

employees, and that the reason for the discussion is that 

Wackenhut seeks to comply with the law and regulations. He 

explained, however, that the determination is made by looking at 

the “best interest of the security operations and operational 

continuity of the site,” that Wackenhut does not have a

preference as to whether its clients provide an on-duty or off-duty 

meal period, and that “if the customer says . . . [the employee] 

can leave the site, they can turn their radio off, they can sleep, 

whatever. They’re not getting paid for it, I don’t care. That’s 

their unpaid meal period. As long as that is understood between 

Wackenhut and the customer, that’s fine. That way we would go 

with the unpaid meal period.” Similarly, Wackenhut’s person 

most knowledgeable testified that at the Riverside branch, onduty meal periods are determined by the client contract: if the 

client wants security for eight hours, then the employee will get a 

paid lunch in that period. There is no evidence that the proper 

test, whether the nature of the work prevented an employee from 

being relieved of all duty, was discussed with clients. (Cal. Code 

Regs., tit. 8, § 11040, subd. (11)(A).)
31

that regardless of variations in specific job assignments, 

Wackenhut could have relieved class members of all duty for 

meal periods. Specifically, plaintiffs’ security expert explained 

that Wackenhut could relieve officers for off-duty meal periods by 

(1) having officers and supervisors at multi-officer sites relieve 

each other; (2) having field supervisors who already travel from 

site to site, relieve officers for breaks; (3) increasing the current 

number of rover officers that Wackenhut already uses to report to 

different locations throughout the day to relieve officers for 

breaks; and (4) where clients agree, having employees of 

Wackenhut’s clients relieve officers for breaks. 

Wackenhut argues that individual issues predominate 

because the nature of the work exception can only be determined 

by inquiring into the details of each individual client, worksite, 

job post, and shift. If an employer, with employees working at 

multiple sites, with various job duties, had made individualized 

determinations regarding the nature of the work, and employees

challenged whether those determinations were correctly made, 

class certification might be inappropriate because the employer 

should have an opportunity to defend each of those individualized 

determinations. But, in this case, since the employer did not 

analyze whether the nature of the work exception applies before 

requiring employees to take on-duty meal periods, it cannot rely 

on the nature of the work defense to bar class certification. 

Individual issues also do not predominate because 

Wackenhut has treated the nature of the work exception on a 

classwide basis. As in Faulkinbury, supra, 216 Cal.App.4th 220,

Wackenhut had all officers sign an on-duty meal agreement 

during orientation, regardless of each officer’s job site or duties. 

And, similar to Abdullah, supra, 731 F.3d 952, although 
32

Wackenhut presented evidence demonstrating the variety of 

duties that class members perform at different sites and even 

within a given site, it offered no evidence that the duties varied 

so that some posts would qualify for the “nature of the work” 

exception, while others would not.9 Nor has it shown why 

particular duties at any site would necessitate an on-duty meal 

period. Deposition testimony of Wackenhut managers shows that 

clients were given the option of providing either on-duty or offduty meal periods and, similar to Abdullah, the only explanation

articulated for providing an on-duty meal period was a staffing 

decision - a client’s preference for continuous coverage. 

2. Invalid Meal Agreements

The second and third conditions of the affirmative defense 

require that the employee sign a written agreement that specifies 

on-duty meal breaks and that also provides that the employee 

may, in writing, revoke the agreement at any time. (Cal. Code 

Regs., tit. 8, § 11040.) Plaintiffs’ theory of liability is that “[e]ven 

if Wackenhut could meet the first prong of the nature of the work 

 

9 Wackenhut offers the following examples of how duties 

vary from site to site: a security officer stationed at the gate of 

an environmental facility is primarily concerned with controlling 

the flow of goods, people, and vehicles through the gate; a 

security officer stationed at a hotel is responsible for remaining 

visible and regularly patrolling the property; an officer stationed 

at a nuclear energy facility is required to check for leaks, odors, 

or other signs of damages that may indicate potential hazards; 

firearm-carrying officers are typically stationed outside certain 

bank branches and are responsible for deterring bank robberies; 

officers serving as jailers process inmates and engage in detailspecific tasks such as photographing and fingerprinting inmates; 

and armed officers who transport detainees perform pat downs to 

prevent contraband items from entering vehicles. 
33

defense, [by proving] that it was unable to provide off-duty meal 

periods to its employees,” it would still be liable for violations of 

the wage order under the second element because prior to 2004, 

the on-duty meal agreements did not contain the required 

revocation clause; beginning in 2004, only new hires signed meal 

agreements with revocation language; and it was not until 2008 

that Wackenhut required all security officers to sign a meal 

agreement with a revocation clause. 

In its decertification order, the trial court found that the 

plaintiffs’ plan to use statistical sampling to determine the 

percentage of agreements that lacked revocation language was

essentially indistinguishable from the method of proof rejected in 

Wal-Mart. Specifically, the court noted that Wal-Mart, supra, 

564 U.S. at pages 366-367, held “that the use of statistical 

sampling as a shortcut to create commonality where none exists 

is improper because it robs a defendant of the opportunity to 

defend against each individual claim and therefore impermissibly 

alters substantive law.” The court also noted that statistical 

sampling would “lead to imprecise individual recoveries

. . . resulting in a windfall for some class members and leaving 

other class members under compensated.” Finally, the court 

noted that the Brinker concurrence recognized that under 

California law, a trial court has discretion to weigh the potential 

advantages and disadvantages of statistical inferences. 

Accordingly, the court explained that it was exercising its 

discretion in not allowing the use of statistical sampling because

Wal-Mart illustrated that a significant disadvantage of statistical 

sampling is the elimination of a defendant’s ability to raise 

defenses to individual claims. 
34

The trial court also concluded that even if plaintiffs were to 

obtain every meal period agreement and attempt to prove 

liability without relying on statistical sampling, individual issues 

would still predominate. It explained that although examining 

each agreement and determining whether it contained revocation 

language would be nothing more than a “tedious and extensive 

audit that is not likely to result in many factual disputes,” 

proving class members had signed invalid agreements would not, 

on its own, establish liability because plaintiffs would still have 

to prove that class members who signed invalid agreements also 

had “on-duty” meal periods. 

Plaintiffs had proposed a subclass consisting of class 

members who signed meal agreements lacking a revocation 

clause who also worked at a post with an on-duty meal period. 

The trial court found the proposed subclass was not “readily 

ascertainable” because plaintiffs failed to define the class in 

objective terms without regard to the merits of the claim. The 

court noted that the “proposed subclass definition includes 

elements necessary to establish liability, and thus determining 

who is in the subclass would require an evaluation” of whether an 

agreement was invalid and whether meal periods were on-duty, 

which would require answering numerous individualized 

questions. 

Even without statistical sampling, determining which

employees signed a meal agreement that lacked a revocation 

clause can be ascertained. As discussed, the parties agreed to 

statistical sampling as an alternative to Wackenhut producing 

meal agreements for all class members or allowing plaintiffs to 

inspect Wackenhut’s files. During the hearings on Wackenhut’s 

decertification motion, the court warned Wackenhut that by 
35

arguing, pursuant to Wal-Mart, that statistical sampling violated 

its due process rights, it waived its objection to limiting discovery 

of the meal agreements. In response, Wackenhut agreed to 

produce all of the meal agreements and engage in full discovery, 

noting that it was “not asking to have it both ways.” The court 

acknowledged in its order that determining which class members 

signed a valid agreement would require nothing more than a 

“tedious and extensive” audit that is not likely to result in many 

factual disputes. Because California Code of Regulations, title 8, 

section 11040, subdivision (11)(A) provides that “[t]he written 

agreement shall state that the employee may, in writing, revoke 

the agreement at any time,” determining whether an agreement 

is invalid would require nothing more than checking whether the 

agreement had a revocation clause. 

Additionally, determining whether an employee, who 

signed a meal agreement that is invalid on this ground, also had 

“on-duty” meal periods, does not require numerous individualized 

questions. At the hearing on the motion for decertification, 

plaintiffs introduced a spreadsheet produced by Wackenhut. The 

spreadsheet was generated by a Wackenhut computer program 

and includes each employee’s name, the client for whom the 

employee worked, address, start time, stop time, and a column on 

the right for nonpaid breaks. Plaintiffs argued that the 

spreadsheet could be sorted by the nonpaid break column, 

making it easy to ascertain which employees had a paid on-duty 

meal period. Wackenhut did not challenge the accuracy of the 

spreadsheet for determining which employees had off-duty meal 

periods. (See Brinker, supra, at p. 1053 (conc. opn. of Werdegar, 

J.) [“[i]f an employer’s records show no meal period for a given 

shift over five hours, a rebuttable presumption arises that the
36

employee was not relieved of duty and no meal period was 

provided”]; see also Cicairos v. Summit Logistics, Inc. (2005) 133 

Cal.App.4th 949, 963 [employers have duty to record their 

employees’ meal periods].) Thus, the proposed subclass was 

ascertainable.

Further, the use of statistical sampling in this case is 

distinguishable from the method rejected by the Supreme Court 

in Wal-Mart because, in that case, the plaintiffs proposed to use 

representative evidence as a means of overcoming the absence of 

a common policy. (Tyson, supra,136 S.Ct. at p. 1048.) In WalMart, the only policy that plaintiffs were able to identify was that 

managers and supervisors had discretion in making employment 

decisions, a policy that in itself does not establish liability. (WalMart, supra, 564 U.S. at p. 355.) Here, when the trial court 

originally certified the class, it found that plaintiffs had met their 

burden. They did so by proffering substantial evidence of a 

common practice by showing (through deposition testimony of 

Wackenhut managers) that meal agreements distributed between 

January 2001 and April or May 2004 lacked the required 

revocability clause, that meal agreements distributed between 

April or May 2004 and May 2008 contained the revocability 

clause but were signed only by new employees, and that it was 

not until May 2008, that Wackenhut distributed agreements with 

a revocability clause to all employees. Thus, unlike Wal-Mart, 

where the use of statistical sampling was the only evidence 

establishing liability, here, the results of the statistical sampling 

(calculating an average percentage of meal agreements lacking 

revocation language for each year between 2001-2008) served as 

a manageability tool – an alternative to burdensome production. 
37

This case also is distinguishable from Wal-Mart because of 

the remedial nature of the Title VII claims at issue in that case. 

Title VII claims are susceptible to individualized determination 

of remedies because if a plaintiff prevails in showing that an 

employer has discriminated, the employer may be ordered to 

reinstate or hire the employee, with or without backpay. (WalMart, supra, 564 U.S. at p. 366.) Thus, the determination of any 

given employee’s remedy is highly individualized. Here, on the 

other hand, Wackenhut has not made a showing that allowing 

individualized inquiries as to which employees had signed an 

invalid meal agreement, rather than using a statistical analysis, 

would result in a significantly different aggregate liability. 

At oral argument, Wackenhut relied on Duran v. U.S. Bank 

National Assn. (2014) 59 Cal.4th 1 (Duran). Duran was a wage 

and hour class action involving alleged misclassification that 

proceeded through trial to a verdict. (Id. at p. 12.) On appeal, 

the California Supreme Court concluded that sampling errors 

required reversal. (Id. at p. 49.) Specifically, the court found 

that the sample was not sufficiently representative or random 

and that there was an intolerably large margin of error. (Id. at 

pp. 42, 43, 46.) The court explained that “without following a 

valid statistical model developed by experts, the [trial] court 

improperly extrapolated liability findings from a small, skewed 

sample group to the entire class.” (Id. at p. 33.) The court noted 

that individual issues may be managed through surveys and 

statistical sampling as long as “some glue” binds class members 

together apart from statistical evidence. (Id. at p. 31.)

Here, Wackenhut entered into a stipulation by which it 

agreed not to challenge the sample on grounds that a less than 

statistically significant number of personnel files were sampled 
38

or that there was a bias in the sample. Wackenhut does not 

challenge the accuracy or reliability of the proposed sampling 

method. Additionally, the statistical sample provided a 

secondary source of proof and was agreed to as a manageability 

tool, not as plaintiffs’ only form of proof. As discussed, at class 

certification plaintiffs offered testimony by Wackenhut managers 

that prior to 2004, the on-duty meal agreements did not contain 

the required revocation clause; beginning in 2004, only new hires 

signed meal agreements with revocation language; and it was not 

until 2008 that Wackenhut required all security officers to sign a 

meal agreement with a revocation clause. Thus, the testimony of 

Wackenhut managers and the meal agreements themselves 

constitute “some glue” that binds class members together apart 

from the statistical evidence. 

The trial court’s conclusion that statistical sampling will 

lead to over and under recovery has not been explicitly resolved 

by California courts, but statistical sampling has been approved 

as a method of determining damages. (Williams v. Superior 

Court (2013) 221 Cal.App.4th 1353, 1366, fn. 6; see also Duran, 

supra, 59 Cal.4th at p. 40 [statistical sampling to prove damages 

is less controversial than to prove liability because “the law 

tolerates more uncertainty with respect to damages than to the 

existence of liability”].) 

In Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 

715, 750, the court found that “from the perspective of the 

administration of justice, . . . an important negative consequence 

of the use of statistical sampling to calculate damages [is that] it 

necessarily yields an average figure that will overestimate or 

underestimate the right to relief of individual employees.” (Ibid.) 

“Weighing against this disadvantage is the consideration that 
39

statistical inference offers a means of vindicating the policy 

underlying the Industrial Welfare Commission’s wage orders 

without clogging the courts or deterring small claimants with the 

cost of litigation. In a particular case, the alternative to the 

award of classwide aggregate damages may be the sort of random 

and fragmentary enforcement of the overtime laws that will fail 

to effectively assure compliance on a classwide basis.” (Id. at p. 

751, fn. omitted.) The court found that it was “within the 

discretion of the trial court to weigh the disadvantage of 

statistical inference—the calculation of average damages 

imperfectly tailored to the facts of particular employees—with 

the opportunity it afforded to vindicate an important statutory 

policy without unduly burdening the courts.” (Ibid.) 

Here, even if the trial court used its discretion to find that 

the disadvantages of statistical sampling outweighed the 

advantages, class certification of the meal break subclass was 

still appropriate because Wackenhut can produce the meal 

agreements or allow plaintiffs to inspect them. 

B. Rest Break Claim

“Every employer shall authorize and permit all employees 

to take rest periods, which insofar as practicable shall be in the 

middle of each work period. The authorized rest period time 

shall be based on the total hours worked daily at the rate of ten 

(10) minutes net rest time per four (4) hours or major fraction 

thereof. . . . Authorized rest period time shall be counted as 

hours worked for which there shall be no deduction from wages.” 

(Cal. Code Regs., tit. 8, § 11040, subd. (12)(A).) “If an employer 

fails to provide an employee a rest period in accordance with the 

applicable provisions of this order, the employer shall pay the 

employee one (1) hour of pay at the employee’s regular rate of 
40

compensation for each workday that the rest period is not 

provided.” (Id., subd. (12)(B).)

Plaintiffs’ complaint alleges that Wackenhut failed to 

permit and authorize employees off-duty rest breaks. Prior to 

May 23, 2008, Wackenhut did not have a written policy 

authorizing or permitting rest breaks.10 Wackenhut argues that 

it did have such a policy, citing as evidence its policy under the 

Fair Labor Standards Act (29 U.S.C. § 201 et seq.) (FLSA), which

became effective on August 3, 2005. That policy provides that 

“Field and Headquarters management are responsible for 

scheduling employees; ensuring that employees accurately report 

their time worked; and maintaining accurate pay records of 

employees who report to them. Field management is also 

responsible for complying with any applicable state or local law 

that provides employees with greater benefits and protections 

than the FLSA in the locations in which they operate.” 

When the trial court initially granted class certification, it 

“found that common issues predominated with respect to the rest 

period claim because . . . Wackenhut managers had testified in 

depositions that Wackenhut had a policy not to provide off-duty 

 

10 Wackenhut created a California Addendum to its security 

officer handbook, which became effective on May 23, 2008. The 

addendum included a provision that “[a]ll non-exempt employees 

of the Company are authorized and permitted to take one 10-

minute rest break for every four hours worked.” The policy 

explains that “[r]est breaks are paid breaks and [the employee] 

will be compensated for the time spent on these breaks. As a 

result, [the employee] may on occasion be called upon to perform 

work related activities during [the employee’s] rest breaks. If [a 

rest] break[] is interrupted because of such work related 

activities, [the employee] may take a ‘make-up break,’ for a full 

ten minutes as soon as practicable under the circumstances.” 
41

rest periods, and there is no nature of the work exception for offduty rest periods.” In its motion for decertification, Wackenhut 

did not present new evidence rebutting plaintiffs’ evidence that 

prior to 2008, it had a uniform policy of not authorizing and 

permitting employees to take off-duty rest periods. Rather, 

Wackenhut challenged whether requiring employees to remain on 

the premises or be reachable by phone or radio, in the event that 

the rest period had to be interrupted in case of an emergency,

meant that the rest period was “on-duty.” Wackenhut also 

argued that “even if [it] had a policy not to provide off-duty rest 

periods (which it did not), in practice Wackenhut security officers 

overwhelmingly were able to take rest breaks.” 

In its decertification order, the court found that the 

deposition testimony of Wackenhut managers on which it had 

relied in its original class certification order did not “conclusively 

establish that Wackenhut had a policy of providing on-duty rest 

periods at every worksite, but instead show[ed] only that 

Wackenhut intended to place certain restrictions on rest periods 

at some worksites, and [that those] restrictions may or may not 

have rendered such rest periods on duty.” 

Application of the wage and hour order did not require

plaintiffs to conclusively establish that Wackenhut had a policy of 

not providing rest periods at every worksite. (See Brinker, supra, 

53 Cal.4th at p. 1022 [certification order relying on improper 

criteria reversible].) A standard requiring plaintiffs to 

“conclusively establish” that Wackenhut had a policy that 

violated wage and hour laws is improper because plaintiffs’ 

burden at class certification is to produce substantial evidence. 

(See Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 

1422 [plaintiffs have burden of producing substantial evidence of 
42

class action requisites, including predominance].) The proper 

inquiry for a predominance analysis is whether “‘questions of law 

or fact common to the class predominate over the questions 

affecting the individual members.’ [Citation.]” (Sav-on, supra, 34 

Cal.4th at p. 329.) Predominance does not require plaintiffs to 

show that an employer’s policy affected all members of the class. 

(Id. at p. 338; see also Alberts, supra 241 Cal.App.4th at p. 407 

[trial court incorrect to require plaintiffs show at certification 

stage “‘universal practice’”].)

The court also found that resolution of the rest period claim 

would involve numerous individualized inquiries because 

evidence in the record showed class members at many 

Wackenhut worksites were provided with rest periods that lacked 

any restrictions and appeared to be fully off-duty. Applying the 

same reasoning it applied to the meal period claim and again 

relying on Wal-Mart, the court explained that common issues no 

longer predominated because Wackenhut had a due process right 

to prove on an individualized basis that it provided off-duty rest

periods to class members. The court cited declarations from two 

security officers and deposition testimony from plaintiff Lubin to 

support its finding that class members at many Wackenhut 

worksites were provided with rest periods that lacked any 

restrictions and appeared to be fully off-duty. The court also 

explained that “analyzing whether any restrictions placed on rest 

periods made them on-duty would require unmanageable 

individualized inquiries into the nature of the rest periods for 

each distinct worksite, shift, and security officer position.” The 

court rejected plaintiffs’ theory that if employees were required to 

remain on-duty for their meal break, it would follow that they 

also were required to remain on-duty for their rest periods. 
43

Instead, the court found it was entirely possible for an employer 

to provide an off-duty rest break even if it chose to provide an onduty meal period. 

As we have discussed, Wal-Mart does not support

Wackenhut’s claim that it had a due process right to prove on an 

individualized basis that it provided off-duty rest periods to every

class member. (See Duran, supra, 59 Cal.4th at p. 38 [“[n]o case, 

to our knowledge, holds that a defendant has a due process right 

to litigate an affirmative defense as to each individual class 

member”].) If plaintiffs had a policy or practice that violates 

labor laws, then class treatment is appropriate. (Brinker, supra, 

53 Cal.4th at p. 1032.) Individualized inquiries into whether an 

employee had a required break on a specific day is relevant to

damages, and “[t]he fact that individual [employees] may have 

different damages does not require denial of the class 

certification motion.” (Jaimez v. Daiohs USA, Inc. (2010) 181 

Cal.App.4th 1286, 1301.) 

In Faulkinbury, supra, 216 Cal.App.4th at page 237, the 

defendant submitted declarations from employees in opposition to 

a motion for class certification. “Some declarations stated the 

employee was relieved of duties in order to take off-duty rest 

breaks; other declarations stated breaks were taken during 

periods of inactivity; at least one declaration stated the employee 

determined, based on the circumstances, when to take a rest 

break; and another declaration stated the employee frequently 

took rest breaks at her post.” (Ibid.) The court explained that “in 

light of Brinker, this evidence at most establishes individual 

issues of damages, which would not preclude class certification” 

and that the defendant’s “liability, if any, would arise upon a 

finding that its uniform rest break policy, or lack of policy, was 
44

unlawful.” (Ibid.) Similarly, because the trial court in this case 

found that plaintiffs had made a showing that Wackenhut had a 

policy or practice of not providing off-duty rest breaks, anecdotal 

evidence that some employees had valid off-duty rest breaks does

not preclude class certification; rather, it is evidence that is 

relevant to damages. 

Determining whether restrictions placed on class members’ 

rest breaks made them “on-duty” also is amendable to classwide 

treatment. A DLSE opinion letter of February 2, 2002 explains 

that the 10-minute rest break must be consecutive and must be 

“duty-free.” (DLSE Opinion Letter of Feb. 2, 2002, Re: Rest 

Period Requirements.)11 However, unlike meal periods, there is 

no “on-duty” exception for rest breaks. Thus, whether the 

restrictions Wackenhut placed on rest break made them “onduty” (for example, requiring employees to remain “on-call”) does 

not require individualized inquires; rather, it is a merits question 

that can be resolved on a classwide basis. (See Brinker, supra,

53 Cal.4th at p. 1034 [whenever possible, courts should 

“determine class certification independent of threshold questions 

disposing of the merits”].) Similarly, plaintiffs’ theory that 

employees who were required to work on-duty for their meal 

periods, also were required to remain on-duty for rest breaks is a 

merits question that can be resolved on a classwide basis. 

 

11 The Supreme Court has granted review in Augustus v. 

ABM Security Services, Inc., review granted April 29, 2015, 

S224853, in which the certified issues are (1) whether Labor Code 

section 226.7 and IWC wage order 4-2001 require that employees 

be relieved of all duties during meal breaks, and (2) whether 

security guards who remain on call during rest breaks are 

“performing work” during that time under the analysis in 

Mendiola v. CPS Security Solution, Inc. (2015) 60 Cal.4th 833.
45

The trial court distinguished the facts of this case from 

Brinker, explaining that in Brinker “there was no dispute that 

the policy and the practice were one and the same. By contrast, 

Wackenhut denies that the written documents Plaintiffs focus on 

[the FLSA policy and the 2008 addendum] represent the full 

extent of the rest periods that it provided to class members.” The 

court found that evidence in the record supported Wackenhut’s 

position that although its written policies only provided guidance 

regarding the requirements of the FLSA, each region 

supplemented the policy with local requirements. As support, the 

court cited to deposition testimony from Michael Goodboe, 

Wackenhut’s vice-president of human resources. Goodboe 

testified that the FLSA policy contained only “‘a basic policy’ that 

was ‘not exhaustive in the sense that it’s a policy for everybody 

everywhere.’” “Rather, Wackenhut ‘offices would be expected to 

add to it’ because ‘there are state and local . . . enhancements to 

the legislation.’” The court also explained that “contrary to 

Plaintiffs’ contention, . . . Mr. Goodboe did not testify that there 

were no enhancements for California, but only that he was 

personally unaware of the California enhancements.” 

Accordingly, the court found that plaintiffs failed to prove, and 

Wackenhut had not conceded, that its written guidance 

concerning the FLSA represented the full extent of the rest 

periods that it authorized in California. 

At class certification, plaintiffs presented deposition 

testimony from Wackenhut managers that the trial court credited

as establishing that Wackenhut had a policy of not providing offduty rest breaks. Wackenhut did not present evidence rebutting

plaintiffs’ evidence and has not shown that it had an informal 

policy or practice of authorizing and permitting employees to take 
46

10-minute rest breaks. (See Brinker, supra, 53 Cal.4th at p. 1033 

[employer is required to permit and authorize required rest 

breaks, and if it adopts uniform policy that does not do so, then 

“it has violated the wage order and is liable”]; see also Bufil,

supra, 162 Cal.App.4th at p. 1199 [onus is on employer to clearly 

communicate authorization and permission to employees].) 

Wackenhut may rebut plaintiffs’ evidence of a lack of policy 

authorizing and permitting rest breaks by providing evidence of a 

uniform policy or practice. However, while Mr. Goodboe did not 

testify that there are no enhancements for California, he did 

testify that he was unaware of any California enhancements, and 

Wackenhut has not presented any other evidence demonstrating 

that there were in fact California enhancements authorizing and 

permitting rest breaks. Anecdotal evidence that some employees 

had rest breaks goes to damages and is not evidence of a uniform 

policy or practice. (Faulkinbury, supra, 216 Cal.App.4th at p. 

237.) Further, Wackenhut’s defense that it had a policy or 

practice authorizing rest breaks is susceptible to classwide 

resolution. (See Bradley, supra, 211 Cal.App.4th at p. 1150 

[plaintiffs’ theory that employer lacked rest break policy and 

failed to authorize breaks are matters of common proof—

although employer could potentially defend claims by arguing it 

had informal or unwritten rest break policy, this defense is also 

matter of common proof].) 

C. Wage Statement Claim

Labor Code section 226, subdivision (a) provides: “[e]very 

employer shall, semimonthly or at the time of each payment of 

wages, furnish each of his or her employees . . . an accurate 

itemized statement in writing showing (1) gross wages earned, (2) 

total hours worked by the employee . . . (6) the inclusive dates of 
47

the period for which the employee is paid . . . , and (9) all 

applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate by the 

employee.”

Pursuant to Labor Code section 226, subdivision (e)(1), an 

employee who suffers injury “as a result of a knowing and 

intentional failure by an employer to comply with subdivision (a) 

is entitled to recover the greater of all actual damages or fifty 

dollars ($50) for the initial pay period in which a violation occurs 

and one hundred dollars ($100) per employee for each violation in 

a subsequent pay period, not to exceed an aggregate penalty of 

four thousand dollars ($4,000), and is entitled to an award of 

costs and reasonable attorney’s fees.” 

An employee is deemed to suffer injury for purposes of

Labor Code section 226, subdivision (e)(2)(B) “if the employer 

fails to provide accurate and complete information as required” 

by subdivision (a), items (1) to (9) “and the employee cannot 

promptly and easily determine from the wage statement alone” 

the inclusive dates of the period for which the employee is paid or 

the applicable hourly rates in effect during the pay period and 

the corresponding number of hours worked at each hourly rate by 

the employee. (Ibid.)

In support of class certification, plaintiffs advanced two 

theories of liability regarding wage statements. First, that wage 

statements provided by Wackenhut lacked three items required 

by Labor Code section 226, subdivision (a): the inclusive dates of 

the pay period, regular rates of pay, and overtime rates of pay 

and second, that the wage statements failed to include premium 

wages earned for missed meal and rest breaks. The court 

originally granted class certification on the itemized wage 
48

statement claim, pursuant to plaintiffs’ second theory of liability, 

finding the claims were derivative of plaintiffs’ meal and rest 

break claims. 

In its decertification order, the trial court explained that 

because the wage statement claim was derivative and individual 

issues now predominated with respect to the meal and rest break

claims, the wage statement claim was no longer suitable for class 

treatment. The court also found that plaintiffs’ first theory of 

liability was not suited for class treatment because “[a]lthough 

determining whether Wackenhut’s wage statements contained 

the required elements under Labor Code section 226(a) is a 

common question, proving that a required element was missing 

does not automatically establish liability. Instead, Plaintiffs 

must also prove that class members suffered injury as a result of 

the defect.” The order went on to explain that plaintiffs had not 

identified a way in which the injury element could be proven on a 

classwide basis, “other than by making the unwarranted 

assumption that a mathematical injury necessarily results 

whenever a wage statement is deficient (which, if accepted would 

render Labor Code section 226(e)’s injury requirement 

meaningless).” 

Subsequent to the court’s order, the Legislature enacted 

Senate Bill No. 1255 to clarify what constitutes “suffering injury”

for purposes of Labor Code section 226. (Sen. Com. on Judiciary, 

Analysis of Sen. Bill No. 1255 (2011-2012 Reg. Sess.) as amended 

Apr. 30, 2012, p. 1.) The legislative history of this statute is 

instructive. The enacting statute was a response to the 

“contradictory and inconsistent interpretations of what 

constitute[d] ‘suffering injury’ under Labor Code section 226 in 

the various court cases that ha[d] been litigated in recent years,” 
49

which the Legislature found “threaten[ed] effective public and 

private enforcement of, and compliance with, wage statement 

requirements.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 

analysis of Sen. Bill No. 1255 (2011-2012 Reg. Sess.) as amended 

Aug. 23, 2012, p. 6; Sen. Com. on Judiciary, Analysis of Sen. Bill 

No. 1255 (2011-2012 Reg. Sess.) as amended Apr. 30, 2012, p. 4.) 

The bill, codified in Labor Code section 226, subdivision 

(e)(2)(B), clarifies that injury for purposes of recovery under 

subdivision (e)(1) is established if “the employee cannot promptly 

and easily determine from the wage statement alone” the 

inclusive dates of the period for which the employee is paid or the 

applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate by the 

employee. 

Accordingly, we conclude that plaintiffs’ wage statement 

claim is amenable to class treatment under both of plaintiffs’ 

theories of liability. First, the question whether Wackenhut’s 

wage statements contained the required elements under Labor 

Code section 226, subdivision (a) is a common question, and 

Labor Code section 226, subdivision (e)(2)(B)(i) clarifies that 

injury arises from defects in the wage statement, rather than 

from a showing that an individual experienced harm as a result 

of the defect. “An amendment which merely clarifies existing law 

may be given retroactive effect even without an expression of 

legislative intent for retroactivity. [Citations.]” (Negrette v. 

California State Lottery Com. (1994) 21 Cal.App.4th 1739, 1744; 

see also Sandoval v. M1 Auto Collisions Centers (N.D. Cal. 2015) 

309 F.R.D. 549, 568 [whether defendants’ statements were 

inaccurate and injured plaintiffs under Lab. Code, § 226 presents 

common questions].) Second, because plaintiffs’ meal and rest 
50

period claims are suitable for class treatment, their theory that 

the wage statements failed to include premium wages earned for 

missed meal and rest periods also is suitable for class treatment. 

DISPOSITION

The order is reversed, and the case is remanded as to offduty meal break, rest brake, and wage statement issues, and for 

further proceedings consistent with this opinion. Appellants are 

entitled to their costs on appeal. 

CERTIFIED FOR PUBLICATION.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.