United States District Court, N.D. California, San Francisco Division
IRMA FRAUSTO, on behalf of herself and all others similarly situated Plaintiffs,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION, Defendant. ARIANNA SUAREZ, on behalf of herself and all others similarly situated, Plaintiff,
v.
BANK OF AMERICA CORPORATION, Defendant.
ORDER CERTIFYING RULE 23(B)(3) CLASS RE: ECF NO.
90
LAUREL
BEELER United States Magistrate Judge
INTRODUCTION
The
plaintiffs both worked for Bank of America as non-exempt
employees and - on behalf of themselves and the putative
class - sued for alleged wage-and-hour violations under the
California Labor Code for off-the-clock work and missed
meal-and-rest breaks. They also made derivative claims
predicated on the off-the-clock work and missed-breaks
claims: failure to pay final wages on time, failure to
provide accurate wage-and-hour statements, and unfair
business practices under California's Unfair Competition
Law (“UCL”). The court grants the motion in part
and certifies the following narrowed classes: (1) for the
off-the-clock claim, (a) all Treasury Services Advisors and
persons with similar job duties (in call centers) and (b) all
Assistant Managers and persons with similar job duties (in
financial centers); and (2) for the meal-and-rest-breaks
claims, all Treasury Services Advisors and persons with
similar job duties (in call centers). The court certifies the
same classes for the derivative claims for the reasons that
it certifies classes for the predicate claims.
STATEMENT
1.
The Plaintiffs, Their Jobs and Class Claims, and Their
Proposed Class
Ms.
Frausto worked in a call center as a Treasury Services
Advisor from 1999 to 2017 and spent her day fielding calls
from commercial clients, financial centers, and other
business partners, and (generally) verifying wires, the
amount of cash in vaults, and information about
accounts.[1] Ms. Suarez worked from 2003 to 2016, first
as a teller, then as a Teller Operations Specialist and a
Client Services Specialist, and starting in 2015, as an
assistant manager.[2]
Following
the court's summary-judgment orders, the Frausto
complaint has two stand-alone class claims: (1) claim two
charging a failure to provide meal breaks, in violation of
the California Labor Code, and (2) claim three charging a
failure to provide rest breaks, in violation of the Labor
Code. It has three class claims predicated on claims two and
three: (3) claim four charging a failure to pay final wages
on time, in violation of the Labor Code, (4) claim five
charging a failure to provide accurate wage-and-hour
statements, in violation of the Labor Code, and (5) claim six
charging unfair business practices, in violation of the
UCL.[3]
The complaint's class definition is as follows:
All persons who worked for any Defendant in California as a
non-exempt employee at any time during the period beginning
four years before the filing of the initial complaint in this
action and ending when notice to the Class is
sent.[4]
The
Frausto complaint has the following subclasses:
Meal Period Premium Sub-Class: All
persons who worked for any Defendant in California as a
non-exempt employee at any time during the period beginning
four years before the filing of the initial complaint in this
action and ending when notice to the Class is sent and
received from any Defendant payment for a bonus and a missed
meal period.
Late Pay Sub-Class: All persons who
worked for any Defendant in California as a non-exempt
employee at any time during the period beginning three years
before the filing of the initial complaint in this action and
ending when notice to the Class is sent and terminated their
employment with any Defendant.[5]
The
Suarez complaint has three stand-alone class claims:
(1) claim one for overtime wages, (based on work “off
the clock”), in violation of the Labor Code; (2) claim
two, charging a failure to pay minimum wage (based on the
overtime violations), [6] in violation of the Labor Code; and (3)
claim three, charging a failure to provide meal-and-rest
breaks, in violation of the Labor Code.[7] It has four class
claims predicated on claims one through three: (4) claim
five, charging a failure to pay vacation time at termination,
in violation of the Labor Code (a claim that is not at issue
in the class-certification motion); (5) claim six, charging a
failure to pay final wages on time, in violation of the Labor
Code; (6) claim eight, charging a failure to provide accurate
wage-and-hour statements, in violation of the Labor Code; and
(7) claim twenty, charging unfair business practices, in
violation of the UCL.[8]
The
Suarez complaint has the following class
definitions:
All non-exempt employees who worked for Bank of America as
Assistant Manager or similar job titles, in the State of
California at any time on or after the date that is four
years prior to when the Complaint was filed.
Terminated Subclass: All persons who are eligible
for membership in the Class but who are no longer employed by
Defendant.[9]
In
their joint class-certification motion, the plaintiffs ask to
certify the following class:
All persons who worked for Defendant Bank of America,
National Association in California as a non-exempt employee
at any time during the period beginning on February 22, 2014
and ending when the Court grants class certification, but
expressly excluding therefrom any individuals who, as of the
date the Court grants class certification, (a) have filed
their own separate action as a named plaintiff alleging any
of the same claims alleged by Plaintiffs, (b) have opted into
a collective action or are class members in a certified class
action against Defendant alleging any of the same claims
alleged by Plaintiffs, and/or (c) have previously released
all claims against Defendant being alleged by
Plaintiffs.[10]
2.
The Plaintiffs' Submissions About the Alleged Labor Code
Violations
The
plaintiffs do not contend that Bank of America had
non-compliant overtime and meal-and-rest break policies and
instead assert that it did not follow its
policies.[11] Their submissions in support of their
class-certification motion include the following: (1)
declarations and testimony from witnesses; (2) a plan to
conduct a survey and use statistical sampling to establish
whether Bank of America's policies and practices resulted
in Labor Code violations; and (3) expert analysis of
timekeeping, payroll, phone, and work-schedule records to
identify any violations and calculate damages.[12]
2.1
Declarations and Testimony
The
plaintiffs submitted declarations from 64 class members.
Ms.
Frausto estimated that she worked overtime approximately once
a week.[13] Ms. Suarez estimated that she worked
overtime approximately two to three days per
week.[14] 62 other class members submitted
declarations too.[15] They had various non-exempt jobs (such
as relationship banker, personal banker, mortgaging-servicing
specialist, teller, sales-and-services specialist,
customer-service representative, sales-service associate,
assistant branch manager, operations manager, short-sale
specialist, customer-service chat agent and phone agent, loan
coordinator, Financial Center loan officer, small-business
consultant, workforce-management analyst and liaison,
collector and intake specialist, negotiator, Doc Drawer, and
senior work-out specialist).[16]In their declarations, they
reported that (1) they worked overtime hours (in the form of
off-the-clock work before or after they logged in for their
shifts) and were routinely denied 30-minute uninterrupted
duty-free meal breaks and 10-minute uninterrupted rest
periods, (2) managers knew that they worked through their
meal-and-rest breaks, (3) performance goals and deadlines
required them to miss their breaks and work overtime,
resulting in the equivalent of a Bank of America policy that
did not allow employees to take meal-and-rest break and
required overtime; and (4) employees clocked in and out of a
computerized system for the start and end of their daily
shifts and meal-and-rest breaks.[17] The plaintiffs'
evidence chart summarizes the evidence in the declarations by
pin cite, including the following facts: (1) employees were
routinely denied 30-minute meal breaks; (2) employees were
routinely denied 10-minute uninterrupted rest periods; (3)
employees clocked in and out at the start and end of their
daily shifts and meal-and-rest breaks; (4) employees received
warning messages from the computer systems when they tried to
insert less than a 30-minute meal break; (5) Bank of
America's timekeeping system and warning system forced
employees to record 30 minutes for a meal break, even when
they did not take it; (6) Bank of America's practices
amounted to a policy of not allowing employees to take
meal-and-rest breaks; (7) employees worked more than eight
hours a day or 40 hours a week; and (8) Bank of America
required or pressured employees to work off-the-clock and
forego breaks.[18] This meant that Bank of America did not
pay all final wages to terminated employees or give them
accurate wage statements.[19]
In her
deposition testimony, Ms. Frausto said (among other things)
that she (1) worked off the clock for around ten minutes when
she booted up her computer in the morning (so that she could
start handling calls when her shift started at 6 a.m.), (2)
was told that she could not log in earlier than 6 a.m. to the
timekeeping system and had to start by 6 a.m., (3) was too
intimidated to report off-the-clock work, (4) was told to be
available at all times to take calls (resulting in missing
meal-and-rest breaks), (5) told her managers about the
problems with the call volume and was told (among other
things) that “[i]t is what it is” and “do
the best you can, ” and (6) logged off the computer
system after she logged off the timekeeping system (a process
that took two to five minutes before she could leave for the
day).[20] She acknowledged that Bank of
America's policies required her to take her breaks, but
she missed breaks six to eight times a week.[21]
In her
deposition testimony, Ms. Suarez said (among other things)
that she (1) could not clock in at the time when she actually
started and instead had to clock in at the precise start time
of her shift, (2) she logged times when she did not take a
lunch or rest break, and management would not approve her
time sheet unless she “unchecked” the box
reporting the missed break, (3) only management could approve
overtime, and they did not, and (3) she was unable to take
meal breaks, which were interrupted every day (when she was
working at certain locations).[22]
Rest
breaks are not recorded in Bank of America's time-keeping
system.[23] If non-exempt employees want to ask for
pay for missed meal or rest breaks, they have to call
Employee Relations (essentially, HR).[24]
2.2
Survey Evidence
Jon
Krosnick, Ph.D., a Stanford professor, will conduct a survey
and use statistical sampling to evaluate the alleged Labor
Code violations.[25] He describes the process for the survey:
(1) draw a sample of class members to interview (either with
a simple random sample or by selecting respondents randomly
from within subgroups, depending on what Bank of America
produces about the relevant employee population, (2) conduct
a small number of one-on-one interviews to determine the
natural language employees use to talk about the nature of
their work, and (3) design a questionnaire to determine (a)
whether, how often, and how much employees worked off the
clock, (b) whether, how often, and how much employees worked
more than eight hours a day or 40 hours a week, (c) the
experiences that caused employees to work off the clock, (d)
whether, how often, and how much employees took meal-and-rest
breaks, (e) work experiences that contributed to not taking
meal-and-rest breaks, and (f) whether employees were told
they were permitted to take meal-and-rest
breaks.[26] He describes how he would (1) test the
questionnaire so employees can understand it, (2) conduct the
interviews, (3) analyze the data, and (4) conduct auxiliary
analyses.[27] Finally, he evaluates the proposed
survey.[28]
In a
second report, Dr. Krosnick responds to the Bank's expert
report (by Robert Crandall) point by point and concludes that
Mr. Crandall's critique of the proposed survey lacks
merit.[29]
2.3
Expert Analysis of Bank of America Records
Jarrett
Gorlick, a data analyst, will analyze timekeeping records,
payroll records, phone records, and work schedules to
determine the frequency of any violations and related
payments.[30] He will compare phone records for
customer-service calls to the corresponding entries in the
timekeeping records and schedules and determine (1) how many
meal breaks took place after more than five hours of work,
(2) how many shifts greater than five hours did not have a
recorded meal break, (3) how many shifts greater than five
hours had a recorded meal break shorter than 30 minutes, (4)
how many shifts greater than 10 hours had no recorded second
rest break, (5) how many shifts greater than 3.5 hours had no
recorded rest break, (6) how many shifts greater than six
hours had no second recorded rest break, (7) how many shifts
greater than 10 hours had no third recorded rest break, and
(8) how many shifts greater than 3.5 hours had a recorded
rest break shorter than 10 minutes.[31] For class members without
phone-reporting records, he can use timekeeping records to
determine categories one through four and also (1) how many
shifts greater than six hours and up to 10 hours had a
scheduled second rest break, (2) how many shifts greater than
10 and up to 12 hours had a second scheduled meal break, and
(3) how many sifts greater than 12 hours had a second
scheduled meal break.[32]
He can
calculate class-wide damages for meal breaks and rest breaks
by multiplying the shifts showing a violation (as determined
by a trier of fact) by the statutory penalty of one hour at
the employee's wage rate.[33] He can determine
time-and-a-half and double-time overtime pay by calculating
the regular rate of pay, using the appropriate multiplier,
and subtracting the reported overtime pay shown on the wage
statements.[34] Wage-statement class-wide damages can be
assessed by multiplying the number of wage statements with a
violation (as determined by a trier of fact) by the
applicable statutory penalty.[35]
In a
second declaration, Mr. Gorlick responds to Mr.
Crandall's analysis - that a data set supported Mr.
Crandall's conclusion that the Bank complied with the
Labor Code - and said (among other things) that the data and
documents identified in Mr. Crandall's report “are
not the same or necessarily analogous to those provided
to” Mr. Gorlick.[36]
3.
Bank of America
Bank of
America's submissions in support of its opposition to the
class-certification motion include the following: (1) the
organization of its operations; (2) its policies and training
about recording shifts and breaks; (3) witness declarations
about their jobs; and (4) expert analysis.
3.1
Organization of Bank Operations
Bank of
America operates contact centers and financial centers.
At its
contact centers (or call centers), the Bank performs
customer-support operations through employees who receive and
respond to telephone calls and emails from the Bank's
clients or other employees.[37] Contact centers are broken
into various lines and sublines of business with different
divisions, subdivisions, groups, departments, and teams with
different supervisory and managerial
hierarchies.[38]
Its
financial centers (or branches) have branch managers (called
Financial Center Managers) who report to Market
Leaders.[39] The Financial Center Manager and a
Financial Center Assistant Manager (formerly known as an
operations manager) are responsible for the management and
operational functions in the branch.[40] Non-exempt employees in
the branches include the assistant manager, tellers,
relationship managers (or personal bankers), and relationship
bankers.[41]
Its
non-exempt employees in California have hundreds of unique
job titles and have different responsibilities.[42] To
demonstrate this, Bank of America submitted 51 declarations
from class members.[43] For example, in the call centers, some
employees handle inbound and outbound calls, some take only
inbound calls, others communicate by email, and most perform
non-call-related tasks.[44] Some work with clients, and others
work behind the scenes.[45] Similarly, in the branches, tellers
work with customers in the teller line, relationship managers
drive sales of banking products and services and meet with
clients by appointment, and relationship bankers pinch hit
for tellers and relationship managers as
needed.[46]
3.2
Policies and Training About Recording Time
Non-exempt
employees record their own time, including the start and end
of shifts and all breaks, and Bank policy requires them to
record time accurately.[47] Bank of America trains its employees
on its policy, and the named plaintiffs here had that
training.[48]
3.3
Declarations
Bank of
America submitted employee declarations stating that they
understood the timekeeping policies, recorded their time
accurately, and were paid for all time worked.[49]Employees said
that no one told them to work off the clock or overtime, and
they regularly recorded (and were paid for)
overtime.[50] Supervisors could correct time entries
if necessary.[51]
3.4
Expert Evidence
Bank of
America's expert is Robert Crandall.[52] He discounted
the plaintiffs' experts as providing nothing more than
“generic statements that ‘a survey or
statistical[] analysis could be
done.'”[53] He reviewed a data sample, that he
opines, reflects legal compliance by the Bank.[54]
ANALYSIS
Class
actions are governed by Federal Rule of Civil Procedure 23. A
party seeking to certify a class must prove that all the
prerequisites of Rule 23(a) are met, as well as those of at
least one subsection of Rule 23(b) (and the relevant
subsection here is Rule 23(b)(3)).
The
following are the prerequisites of Rule 23(a): (1) the class
is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. A court may certify a class under
Rule 23(b)(3) if “the court finds that the questions of
law or fact common to class members predominate over any
questions affecting only individual members, and that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed.R.Civ.P.
23(b)(3).
“[P]laintiffs
wishing to proceed through a class action must actually
prove - not simply plead - that their proposed class
satisfies each requirement of Rule 23, including (if
applicable) the predominance requirement of Rule
23(b)(3).” Halliburton Co. v. Erica P. John Fund,
Inc., 573 U.S. 258, 275 (2014) (emphasis in original)
(citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350-51 (2011); Comcast Corp. v. Behrend, 569
U.S. 27, 32-33 (2013)). “[C]ertification is proper only
if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23[] have been
satisfied.'” Comcast, 569 U.S. at 33
(quoting Wal-Mart, 564 U.S. at 350-51). “Such
an analysis will frequently entail ‘overlap with the
merits of the plaintiff's underlying claim.'”
Id. at 33-34 (quoting Wal-Mart, 564 U.S. at
351). “That is so because the ‘class
determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the
plaintiff's cause of action.'” Id. at
34 (quoting Wal-Mart, 564 U.S. at 351). Still,
“Rule 23 grants courts no license to engage in
free-ranging merits inquiries at the certification
stage.” Amgen Inc. v. Conn. Ret. Plans and Tr.
Funds, 568 U.S. 455, 466 (2013). “Merits questions
may be considered to the extent - but only to the extent -
that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.”
Id. (citing Wal-Mart, 564 U.S. at 351 n.6).
The
plaintiffs' main claims are for off-the-clock work and
missed meal-and-rest-breaks, and they also raise claims
predicated on these claims: failure to pay final wages on
time, failure to provide accurate wage-and-hour statements,
and unfair business practices under the UCL. They move to
certify classes for all claims.[55] The court grants the
motion in part and certifies the following narrowed classes:
(1) for the off-the-clock claim, (a) all Treasury Services
Advisors and persons with similar job duties (in call
centers) and (b) all Assistant Managers and persons with
similar job duties (in financial centers); and (2) for the
meal-and-rest-breaks claims, all Treasury Services Advisors
and persons with similar job duties (in call centers). The
court certifies the same classes for the derivative claims
for the reasons that it certifies classes for the predicate
claims.[56]
1.
Rule ...