The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court is Defendant's Motion to Amend Certification Order (Dkt. 148), and Plaintiffs' Motion to Amend Class Certification (Dkt. 172).*fn1
The Court will briefly discuss the background relevant to the pending motions. On December 7, 2007, the Court conditionally certified the class. (Dkt. 43.) In so holding, the Court found the predominance inquiry under Fed. R. Civ. P. 23(b)(3) was satisfied as the main issue, whether Defendant breached its employment contract with hourly workers by failing to pay them for all hours worked, was common to all class members. The Court noted that liability would be established based upon off-the-clock work under the same standardized employment contract and with reference to the same standardized policies. At that time, the Court found there would likely be three groups within the class: (1) uncompensated drivers of vans and buses; (2) employees working off-the-clock and more than 12 hours a day or 84 hours a week; and (3) employees required to ride in company vans or buses to the job site. (Dkt. 43, p. 11.) As to the van drivers, the Court noted that LSI had a policy of designating certain individuals to serve as van drivers, generally the newest member to join a shift. These drivers were responsible for getting the van and picking up the other employees before the start of the employees' shift. It was also the policy that these drivers would not be paid for the time at the beginning of each day, nor for the trip back to housing at the end of the shift.
In its June 9, 2008 ruling on Defendant's motion for partial summary judgment, the Court found that the time-keeping procedures were part of the Employment Agreement and the employees were bound by them by signing the agreement and the acknowledgment. (Dkt. 65.) The Court concluded that "commute time" was not work and could not be the basis for a claim and that any overtime claims for commuting were limited to those employees actually driving the vans and buses (i.e., the "Driver's Claim"). (Dkt. 65, p. 13.) This, in effect, eliminated the group that consisted of "employees required to ride in company vans or buses to the job site," and left as remaining groups "uncompensated drivers of vans and buses" and "employees working off-the-clock." The Court also found that it was undisputed that after March 2006, LSI began compensating its personnel for driving vans and busses with the use of "flex time" during the employee's regular shift. (Dkt. 65, p. 13.) This finding was based on the declaration of Phillip Wagstaff, Program Director for LSI, who stated that beginning in March 2006, LSI began compensating all personnel who drove other employees to and from the worksite. (Dkt. 47-3, ¶¶ 9-10.)
Following a second motion for partial summary judgment, the Court again recognized that the timekeeping policies and procedures were incorporated into the Employment Agreement. The Court concluded that, under the policies, employees were to seek approval from their supervisors in order to work overtime and the supervisor was to get approval from KBR; it was not the employee's responsibility to initiate the approval form process. (Dkt. 142, p. 9.) The Court noted that the affidavits submitted by Plaintiffs described different practices at different work sites and that a reasonable inference could be drawn that employees were working "off-the-clock" with the approval and knowledge of their foremen and supervisors. (Id., p. 10.) The Court also found that whether the foremen "approved" excess hours at the shop level and never followed through with a written request was a disputed issue of fact. (Id., p. 11.)
1. Defendant's Motion to Amend Certification
Defendant moves pursuant to Fed. R. Civ. P. 23(c)(1)(C)*fn2 to amend the December 7, 2007 order certifying class (Dkt. 43, "certification order") based on developments subsequent to the decision. See Armstrong v. Davis, 275 F.3d 849, 872 n. 28 (9th Cir. 2001) (stating Rule 23 "provides district courts with broad discretion . . . to revisit certification throughout legal proceedings before the court.") In the certification order, the Court stated that if it appeared later in the proceedings that a class would not appropriate, it would decertify the class. (Dkt. 43, p. 14.) Defendant seeks to have the order amended so that the class solely consists of LSI employees who allege a "Driver's Claim," i.e., the employee alleges that he or she transported other LSI employees in LSI vans and buses without compensation between March 1, 2004 to March 1, 2006. The motion is based on three occurrences: (1) the Court dismissed Plaintiffs' Commute Time Claim (Dkt. 65),*fn3 (2) the Ninth Circuit recently clarified the "predominance" requirement of Rule 23(b)(3); and (3) the Court found that the Employment Agreement and Excess Time Policy are enforceable (Dkt. 142).
Pursuant to Fed. R. Civ. P. 23(b)(3), to qualify for certification, a class must satisfy two conditions in addition to the Rule 23(a) prerequisites: "questions of law or fact common to class members predominate over any questions affecting only individuals, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The Court must determine "whether common issues constitute such a significant aspect of the action that there is a clear justification for handling the dispute on a representative rather than on an individual basis." Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453, 467 (S.D. Cal. 2007). In the certification order, the Court found that the main issue in this case was common to all class members: that is, whether Defendant breached its employment contract with hourly workers by failing to pay them for all hours worked. (Dkt. 43, p. 10.) The Court found this case to be similar to the case of Kurihara v. Best Buy Co., because there was a company wide policy that formed the basis of the alleged injuries. (Dkt. 43, p. 12.) In Kurihara, the court found that plaintiff had provided substantial evidence of a company wide policy whereby employees were subjected to inspections and not compensated for time spent on those inspections. It was that policy which formed the basis of the injuries. 2007 WL 2501698, *10 (N.D. Cal. Aug. 30, 2007). In reviewing the case law, the court in Kurihara did recognize that "courts are comfortable with individualized inquiries as to damages, but are decidedly less willing to certify classes where individualized inquiries are necessary to determine liability." Id. at *9. Because there would not be individualized inquiries as to liability, the Kurihara court certified the class. Id. at *11. In contrast, in Lanzarone v. Guardsmark Holdings, Inc., the court found that the record did not support the impression that the defendant had a systematic policy or practice of providing insufficient meal and rest periods or misleading its officers about uniform allowances and accordingly, the bulk of the issues in dispute were inherently individualized. 2006 WL 4393465, *4 (C.D. Cal. Sept. 7, 2006). The court identified the individual questions*fn4 that would have to be resolved for each officer and concluded that plaintiff could not meet his burden under Rule 23(b)(3). Id.
Defendant argues in finding that the predominance requirement was satisfied, the certification order focused in large part on the standardized Employment Agreement and policies. Defendant contends that now, based on the Court's subsequent ruling that found the Employment Agreement and Excess Time Policy are enforceable, these documents cannot give rise to Defendant's liability as to each class member or provide common evidence that can resolve a question of fact as to liability. Defendant further argues that the key fact upon which its liability to any class member depends is did this employee have approval to work excess time which can only be answered with evidence gathered by deposing each employee and the corresponding supervisor or foreman. Therefore, individualized questions of liability to each class member plainly predominate over any supposed common questions.
Plaintiffs argue that the common, predominating issues are whether Defendant's identical employment agreements with each class member, all of which incorporated Texas law, obligated it to pay them for all time worked, how many hours were unpaid and what rate.
For the group at issue, those who worked in excess of 12 hours a day or more than 84 hours a week, the certification order placed a strong emphasis on the Defendant's company wide policy requiring 48 hours of advance notice to work overtime. (Dkt. 43, pp. 12-13.) In a later decision on this specific claim, the Court found that the employees were required, pursuant to Defendant's policies and procedures, to receive approval in order to work excess time and receive compensation. (Dkt. 142, p. 9.) It was also noted that class members described different practices at different sites. (Dkt. 142, p. 10.) The Court further elaborated that it was not the employee's responsibility to initiate the form to approve excess time but rather the supervisor's responsibility. Also, employees may have worked excess time with the approval or acquiescence of their foreman or supervisors. The fact that the supervisors may not have followed all of the steps to get approval for excess time should not be used to deny the Plaintiffs compensation for hours worked in excess of 12 hours a day. (Dkt. 142, p. 11.)
In light of the Court's earlier ruling on the excess time claim, the Court finds that the individualized issues to be decided predominate over the common. This is not a case where liability will turn just on whether the Employment Agreement was breached. Rather, the Court will have to look into specific instances to see whether the employee received approval from his supervisor or foreman and whether and what steps the supervisor or foreman took to get the excess time approved by KBR. Further, there will be individualized defenses to each claim for excess time that the Defendant should be entitled to present, such as: the employee never worked excess time; the employee was compensated for any excess time worked, including by receiving "comp time" or "flex time;" the employee did not seek approval to work the excess time; the employee's supervisor had no knowledge that the employee had worked any excess time; the employee unreasonably relied on ...