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Abdullah v. U.S. Sec. Associates, Inc.

United States Court of Appeals, Ninth Circuit

September 27, 2013

Muhammed ABDULLAH, as an individual and on behalf of all others similarly situated, Plaintiff-Appellee,
v.
U.S. SECURITY ASSOCIATES, INC., a corporation, Defendant-Appellant.

Argued and Submitted March 7, 2013.

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[Copyrighted Material Omitted]

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Robert J. Stumpf, Jr. (argued), San Francisco, CA; Otis McGee, Jr., Ross A. Boughton, Morgan P. Forsey, and Lauren D. Thibodeaux, Sheppard, Mullin, Richter & Hampton LLP, Los Angeles, CA, for Defendant-Appellant.

Kenneth H. Yoon (argued), Los Angeles, CA; Peter M. Hart and Amber S. Healy, Los Angeles, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, George H. King, Chief District Judge, Presiding. D.C. No. 2:09-cv-09554-GHK-E.

Before: RICHARD A. PAEZ and PAUL J. WATFORD, Circuit Judges, and LESLIE E. KOBAYASHI, District Judge.[*]

OPINION

PAEZ, Circuit Judge:

The district court certified a class of former and current employees of U.S. Security Associates, Inc. (" USSA" ), who allege that USSA committed numerous violations of California labor law. USSA filed a petition to appeal the district court's certification order, which we granted. See Fed.R.Civ.P. 23(f). On appeal, USSA argues that the court erred in certifying the meal break sub-class, because the plaintiffs failed to establish " questions of law or fact common to the class" that " predominate" over questions affecting only individual members. Fed.R.Civ.P. 23(a)(2), (b)(3). We hold that the district court did not abuse its discretion by certifying the meal break sub-class. Accordingly, we affirm.

I. BACKGROUND

A.

Plaintiff Muhammed Abdullah is a former employee of USSA, a private security guard company.[1] USSA provides guards at over 700 locations in California, including hotels, hospitals, warehouses, and construction sites, among other locations. In addition to standing guard at such locations,

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USSA's employees may perform a range of other duties, such as inspecting vehicles, patrolling properties, reacting to patient emergencies, clearing off railroad tracks, and recording damage to vehicles, among many other tasks. A large majority of USSA's employees in California work at " single post" locations, meaning that no other guards are on duty at the same time.[2]

As a condition of employment, all of USSA's employees are required to sign " on-duty meal period agreements." The record contains two versions of such agreements. The first, which was used prior to 2007, provides:

Due to the nature of the work I perform as a Security Guard, and due to the nature of the services provided by U.S. Security Associates, Inc., I understand that my work prevents me from being relieved of all duty during my meal period. I am voluntarily agreeing to have my daily meal period " on duty." I understand that I will be paid at my regular rate of pay for my on duty meal period. I understand that, if I elect to revoke this agreement, I may do so at any time, provided my revocation is in writing.

The second, which USSA has used since mid-2007, provides:

Due to the nature of the work I perform as a Security Guard, and due to the nature of the services provided by U.S. Security Associates, Inc., I understand that I may be prevented from being relieved of duty during my meal period. On this basis, I voluntarily agree to have an " on-duty" meal period that shall be counted as time worked and compensated by U.S. Security Associates, Inc.

After five (5) hours worked, the following waiver becomes relevant:

Pursuant to paragraph 13 of Wage Order No. 4-2001 of the California Industrial Welfare Commission, Employee and Employer, as evidenced by their respective signatures below, hereby mutually agree to waive the right to an off-duty meal period for any hours worked in excess of five (5) total hours in a workday.
I understand that I may revoke this agreement at anytime in writing, and such revocation shall be presented to my Supervisor or Operations Manager at the beginning of the shift on which I first desire to revoke the agreement. I am voluntarily signing this agreement.

Flury testified that if an employee refuses to sign the " on-duty meal period agreement," he or she " won't work for us." He further testified that one of the " requirements" of the job, as evidenced by the meal-period " waiver," was for USSA employees to eat meals on the job.

B.

The plaintiffs sought to maintain a class action on behalf of themselves and all others similarly situated, alleging that USSA committed numerous violations of California labor laws, including, inter alia, requiring them to work through their meal periods. Of note here, they allege that USSA has a " policy of requiring employees to work through their legally mandated meal periods," and is therefore liable for " paying premium compensation for missed meal periods ... pursuant to California Labor Code § 226.7 and the applicable

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[Industrial Welfare Commission] Wage Order." [3]

The district court certified the class and seven sub-classes, pursuant to Rule 23(b)(3). One of the sub-classes is the meal break sub-class, which is defined as:

A Subclass of all of Defendant's past and present California Security Guard/Officer employees who worked more than six hours and were not provided a checked-out meal break in any work shift from July 1, 2007 through the present, and who were not compensated for such on-duty meal break(s) pursuant to California Labor Code § 226.7(b).

The district court determined that certifying this sub-class was appropriate, " [g]iven [USSA's] uniform policy of requiring the putative subclass members to sign the on-duty meal break agreement," as well as the " evidence that, in the vast majority of cases, this policy was implemented to require on-duty meal breaks be taken." A few months later, the court reached the same conclusion in an order denying USSA's motion for reconsideration. Having been granted leave to appeal, USSA challenges the district court's certification of the meal break sub-class on the grounds that the ...


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