Bluford v. Safeway Stores











Filed 5/8/13 Bluford v. Safeway Stores CA3











NOT TO BE PUBLISHED









California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(San
Joaquin)

----






>

KENNETH BLUFORD, Plaintiff and Appellant, v. SAFEWAY STORES, INC., Defendant and Respondent.

C066074 (Super. Ct. No. CV028541)

This appeal concerns the trial
court’s denial of class certification in a wage and hour action. Plaintiff Kenneth Bluford sought to certify a
class of plaintiffs in his action against his employer, defendant Safeway,
Inc. He claims Safeway violated
statutory and regulatory laws requiring it to provide its employees with paid
rest periods, earned meal periods, and sufficiently itemized wage
statements.

The trial court denied plaintiff’s
motion to certify a class. It ruled
individual issues predominated over common issues on the rest period and meal
period claims, and that plaintiff failed to allege a href="http://www.sandiegohealthdirectory.com/">common injury resulting from
the inadequate wage statements.

We reverse. Insufficient evidence supports the trial
court’s ruling, as common issues predominate over individual issues, and
plaintiff in fact alleged a common injury resulting from the wage
statements. We order the trial court to
grant plaintiff’s motion.

FACTS

Since 2003, Safeway has managed the
operations of a distribution center in Tracy. Plaintiff is employed by Safeway as a truck
driver who works out of the distribution center. He and the other drivers he sought to certify
as a class deliver goods from the distribution center to Safeway stores in
northern California and Nevada.href="#_ftn1" name="_ftnref1" title="">[1]

Safeway’s truck drivers are
represented by General Teamsters Local 439, which has negotiated successive
collective bargaining agreements with Safeway.
The agreements included provisions regarding rest periods and meal
periods. Under those provisions, Safeway
was required to provide two paid rest periods of 15 minutes each for every
eight- or 10-hour shift worked.
Employees received an additional 15-minute paid rest period if they
worked in excess of two hours overtime.

Also under the agreements, drivers
were to take a 30-minute meal period on their own time. Drivers were required to take the meal period
no later than five hours after their regular shift began. The first collective bargaining agreement,
which ran from 2003 to 2008, did not require drivers to take a second meal period
if the driver worked more than 10 hours.
The second agreement, however, effective September 28, 2008, to 2011, required drivers to take a
second meal period in addition to the first meal period if the driver worked
more than 10 hours. The driver could
waive this second meal period if he had worked no more than 12 hours and had
taken the first meal period.

The collective bargaining
agreements also obligated Safeway to utilize what it calls an activity based
compensation system to determine the drivers’ wages. Pay was calculated based on (1) mileage rates
applied according to the number of miles driven, the time of day the trips were
taken, and the locations where the trips began and ended; (2) fixed rates for
certain tasks (e.g., rates for number of pallets delivered and picked up); (3)
an hourly rate for a predetermined amount of minutes for certain tasks (e.g.,
paid for 10 minutes at hourly rate for set-up time at each store); and (4) an
hourly rate for delays (e.g., breakdowns, impassable highways, time spent at
scales, or other causes beyond the driver’s control).

Drivers logged their mileage and
activities for each trip manually on trip sheets. They also logged their activities into an
onboard computer system known as the XATA system. Through XATA, Safeway tracked the drivers’
moves, including their stops. The
drivers input codes into XATA to record specific reasons for delays. Neither the trip sheets nor the XATA system,
however, provided a place or means to record meal or rest periods.

Beginning in 2005, after we issued
our decision in Cicairos, Safeway
took additional steps to ensure its drivers took their breaks. In December 2005, it required drivers to note
on their daily trip sheets when they took their meal periods. In July 2006, it required each driver to sign
a certification on the back of the trip sheets certifying he was “authorized
and permitted” to take his rest periods, and that he took his meal
periods. In 2007, Safeway informed
drivers that failing to sign the certification on the trip sheet could result
in discipline.

At all relevant times, Safeway
provided the drivers with a “driver trip summary -- report of earnings” and an
“earnings statement” with each paycheck.
The driver trip summary listed each component of a driver’s pay, and the
quantity of each component for which he was being paid. The components and quantities were paid based
on the rates set in the collective bargaining agreements. The earnings statement itemized the actual
components, and it expressed them in an equivalent hourly pay. However, neither the driver trip summary nor
the earnings statement stated the rates by which drivers were compensated for
their mileage.

Plaintiff filed his complaint as a
class action in 2006. He alleged Safeway
violated pertinent provisions of the Labor Code and Industrial Welfare
Commission wage orders by failing to provide him and other similarly situated
employees with paid rest periods, meal periods, and sufficiently itemized wage
statements. Specifically, plaintiff
contends Safeway violated the law by (1) not paying for rest periods nor
specifically accounting for them on wage statements; (2) (a) not providing
until 2006 a second meal period for drivers who worked more than 10 hours a
day, and (b) not making adequate efforts until 2006 to relieve drivers of their
duties for any required meal period; and (3) issuing inadequate wage statements
omitting essential information that would allow a driver to determine if he had
been paid the proper amount of wages owed him under the activity based
compensation system.

In April 2009, plaintiff filed his
motion for class certification. He
sought to certify three subclasses:
those drivers denied paid rest periods; those denied required meal periods;
and those who received inadequate wage statements. The trial court denied the motion in July
2010. It found class members’ individual
reasons for not taking rest or meal periods predominated over common
issues. It believed it could resolve the
rest and meal period claims only by inquiring into each episode where a class
member did not take a break. As to the
wage statement claim, the court ruled plaintiff could not show common issues
because class members did not suffer any common injury from the wage
statements.

Plaintiff contends the trial court
erred in refusing to certify the class, subdivided into three subclasses.

DISCUSSION

I

Standard of Review

Our Supreme Court recently
described the standard of review we are to apply. “Drawing on the language of Code of Civil
Procedure section 382 and federal precedent, we have articulated clear requirements for the
certification of a class. 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. (Code Civ.
Proc., § 382; Fireside Bank [v.
Superior Court (2007) 40 Cal.4th 1069,] 1089; Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 435; City of San Jose [v. Superior Court (1974) 12 Cal.3d
447,] 459.) ‘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 can adequately represent the class.” ’ (Fireside Bank, at p. 1089, quoting Richmond
v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)

“Here, only a single element of
class suitability, and a single aspect of the trial court's certification decision,
is in dispute: whether individual
questions or questions of common or general interest predominate.name=clsccl5> 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.’
(Collins v. Rocha (1972) 7 Cal.3d 232, 238; accord, Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) 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.’ (Sav-On,
at p. 327.) A court must examine the allegations
of the complaint and supporting declarations (ibid.) 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.[href="#_ftn2" name="_ftnref2" title="">[2]] ‘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.’ (Hicks v. Kaufman &
Broad Home Corp. (2001) 89 Cal.App.4th 908, 916; accord, Knapp v.
AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 941.)

“On review of a class certification order, an
appellate court’s inquiry is narrowly circumscribed. ‘The decision to certify a class rests
squarely within the discretion of the trial court, and we afford that decision
great deference on appeal, reversing only for a manifest abuse of
discretion: “Because trial courts are
ideally situated to evaluate the efficiencies and practicalities of permitting
group action, they are afforded great discretion in granting or denying
certification.” [Citation.] A certification order generally will not be
disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on
improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’
(Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1089;
see also Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d
462, 472 [‘So long as [the trial] court applies proper criteria and its action
is founded on a rational basis, its ruling must be upheld.’].) Predominance is a factual
question; accordingly, the trial court’s finding that common issues predominate
generally is reviewed for substantial evidence.
(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at
pp. 328–329.) We must ‘[p]resum[e] in
favor of the certification order . . . the existence of every fact
the trial court could reasonably deduce from the
record . . . .’ (>Id. at p. 329.)” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022 (>Brinker).)

II

Certification of Rest Period Subclass

Plaintiff contends the trial court
erred in refusing to certify the rest period subclass. He argues his theory of recovery is based on
Safeway’s policies and procedures that apply uniformly to all drivers. He asserts Safeway did not pay its drivers
for rest periods because its compensation system, based on miles driven and the
performance of specific tasks, did not account for rest periods or provide an
ability to be paid for them. Safeway
also provided no means by which an employee could verify he was paid for his
rest periods. He argues these issues,
common to each driver, predominate, and thus the trial court erred by
concluding individual issues would predominate.

We agree with plaintiff. The trial court’s denial of the rest period
certification class is not supported by substantial evidence. Issues common to all drivers and Safeway
predominate plaintiff’s claim for rest period compensation. Indeed, the common proof demonstrates Safeway
did not separately compensate drivers for their rest periods in the manner
required by California law. Because the only issue remaining to be
resolved for this class is damages, the class is to be certified.

Under Industrial Welfare Commission
wage orders, employers are required to “authorize and permit all employees to
take rest periods” at the rate of at least 10 minutes for every four hours
worked. (Cal. Code Regs., tit. 8, §§
11070, subd. 12; 11090, subd. 12.)
“Authorized rest periods shall be counted as hours worked for which
there shall be no deduction from wages.”
(Ibid.) Safeway’s collective bargaining agreements
required it to provide two 15-minute, paid rest periods for each eight- or
10-hour shift worked.

Plaintiff claims Safeway was
required to compensate drivers separately for their rest periods, and that it
did not because its compensation system, based on miles driven and specific
tasks performed, did not include rest periods as an item that would be reported
by drivers and compensated.

Safeway asserts it complied with
the wage order. It argues the wage order
requires only that pay not be deducted for rest periods, and Safeway never
deducted pay from its drivers for taking rest periods. It claims the wage order does not require
employers who use a piece-rate or incentive-based compensation system like
Safeway’s to put employees on the clock just to pay for rest periods. Rather, Safeway claims, pay for rest periods
is considered part of the overall piece-rate compensation.

Even if pay for rest periods is not
considered part of the piece-rate compensation, Safeway claims its policy,
contained in the collective bargaining agreements, was to provide paid rest
periods, and that in fact it paid drivers for their rest periods. Safeway asserts the mileage rates negotiated
in the collective bargaining agreements
included paid time for rest periods.

There is no doubt Safeway was
required to provide the drivers with paid rest periods. Employees are entitled to “a paid 10-minute
rest period per four hours of work.
[Citation.]” (>Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal.4th 1094, 1104.) The wage
order’s requirement not to deduct wages for rest periods presumes the drivers
are paid for their rest periods. And, as
Safeway acknowledges, its policy was to provide paid rest periods.

However, under the rule of >Armenta v. Osmose, Inc. (2005) 135
Cal.App.4th 314, 323 (Armenta), rest
periods must be separately compensated in a piece-rate system. Rest periods are considered hours worked and
must be compensated. (Cal. Code Regs.,
tit. 8, §§ 11070, subd. 12; 11090, subd. 12.)
Under the California minimum wage law, employees must be compensated for
each hour worked at either the legal minimum wage or the contractual hourly
rate, and compliance cannot be determined by averaging hourly
compensation. (Ibid.; Sheppard v. North
Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289,
297, fn. 5.)

Thus, contrary to Safeway’s
argument, a piece-rate compensation formula that does not compensate separately
for rest periods does not comply with California minimum wage law. (See Reinhardt
v. Gemini Motor Transport (E.D. Cal. 2012) 869 F.Supp.2d 1158, 1168
[piece-rate pay system that did not separately pay truck drivers for
non-driving duties violates California law requiring compensation for each hour
worked]; Cardenas v. McLane FoodServices,
Inc. (C.D. Cal. 2011) 796 F.Supp.2d 1246, 1252 [piece-rate pay system that
did not separately pay truck drivers for non-driving duties and rest periods
violates California law requiring compensation for each hour worked].)

There is no dispute that Safeway’s
activity based compensation system did not separately compensate drivers for
their rest periods. Pay was calculated
based on mileage rates applied according to the number of miles driven, the
time when the trips were made, and the locations where the trips began and ended. None of these components directly compensated
for rest periods. Driver pay was also
based on fixed rates for certain tasks and hourly rates for other tasks and
delays. There is no dispute that none of
these fixed rates were applied to rest periods.

Safeway counters that although it
did not separately compensate for rest periods, the activity based compensation
system did include compensation for rest periods. John Flanigan, one of the designers of the
compensation system, testified in a deposition that the system’s mileage rates
and the activity rates were designed to include payment for expected rest
periods. Even if that is so, it is akin
to averaging pay to comply with the minimum wage law instead of separately
compensating employees for their rest periods at the minimum or contractual
hourly rate, and, as we have explained, it is not allowed under California
labor law.

Safeway hopes to raise a defense it
claims requires individual resolution for each driver, but resolution of that
issue is unnecessary under controlling law.
Safeway asserts plaintiff’s theory of recovery is grounded in an
interpretation of the collective bargaining agreements and their mileage rates,
which provide for the drivers’ rest periods and which allegedly include
compensation for them. As a result,
Safeway argues plaintiff’s claim is preempted by the federal Labor Management
Relations Act (see 29 U.S.C. § 185).
That act may preempt state law claims that are substantially dependent
on an analysis of a collective bargaining agreement. (Department
of Fair Employment & Housing v. Verizon California, Inc. (2003) 108
Cal.App.4th 160, 165.)

By concluding Safeway was required
to separately compensate for rest periods and was precluded from building
compensation into its mileage rates for rest periods, we have foreclosed any
need for the trial court to interpret the collective bargaining
agreements. Safeway does not dispute
that the drivers’ rest periods were not separately compensated. Thus, on remand, the only issue remaining to
be decided on the rest period claim is the drivers’ damages. Because Safeway’s liability can be determined
by law and facts common to all members of the class, the class will be
certified even if the class members must individually prove their damages. (Hicks
v. Kaufman & Broad Home Corp. supra, 89 Cal.App.4th at p. 916.)

Safeway asserts our holding will
severely disrupt piece-rate pay systems throughout the state. Yet Safeway itself already pays drivers an
hourly rate for certain defined and recorded tasks. There is no evidence that its compensation
system will collapse by complying with controlling law and having to include
one additional element -- rest periods -- that must be separately paid at an
hourly rate.

The trial court’s conclusion that
individual issues will predominate is not supported by substantial
evidence. Plaintiff’s theory of recovery
does not concern the drivers’ subjective reasons for taking or not taking a
rest period. Rather, it concerns Safeway’s
compensation system and its failure to separately compensate drivers for their
rest periods. All of the disputes on the
merits of this claim involve common evidence and argument, and individual
damages. The rest period subclass must
be certified.

III

Certification of Meal Period Subclass

Plaintiff contends the trial court
erred by refusing to certify the subclass of drivers on his meal period
claims. He raises two grounds of
liability. He first asserts Safeway as a
matter of policy failed to provide a required second meal period, at least
until 2006, for drivers who worked shifts of 10 or more hours. Second, he claims Safeway did not take
sufficient action to relieve drivers of work duty so they could take a meal
period, such as recording and scheduling meal periods, correcting for drivers
not taking meal periods, and paying meal period premiums to drivers who missed
their meal periods. Plaintiff claims
common issues of law and fact will predominate both of these grounds for
relief, making them amenable to class adjudication.

We agree with plaintiff that his
first ground for relief, Safeway’s alleged failure as a matter of policy to
provide a second meal period, involves common issues of law and fact and thus
is suitable for class certification. The
trial court’s conclusion that individual issues would predominate is not
supported by substantial evidence. Because we conclude the meal period class
must be certified for this ground, we need not address plaintiff’s second
ground. The issue for the trial court
was whether any of plaintiff’s meal period theories of recovery were amenable
to class treatment. (>Brinker, supra, 53 Cal.4th at p.
1032.) Having found one theory the trial
court erred in finding not amenable, we may reverse its order on that basis.

Labor Code
section 512, subdivision (a), and the applicable wage orders (Cal. Code Regs.,
tit. 8, §§ 11070, subd. 11; 11090, subd. 11) require an employer to provide
meal periods to its employees. In
general, an employer must provide at least one 30-minute meal period to an employee
who works more than five hours per day.
If an employee works more than 10 hours per day, the employer must
provide a second meal period of at least 30 minutes, except that if the
employee works no more than 12 hours, he and the employer may waive the second
meal period so long as the first meal period was not waived. (Lab. Code, § 512, subd. (a).)href="#_ftn3" name="_ftnref3" title="">[3]

An employer
satisfies its obligation to provide the required meal periods “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. . . . [¶] On
the other hand, the employer is not obligated to police meal breaks and ensure
no work thereafter is performed. Bona
fide relief from duty and the relinquishing of control satisfies the employer’s
obligations, and work by a relieved employee during a meal break does not
thereby place the employer in violation of its obligations and create liability
for premium pay . . . .”
(Brinker, supra, 53 Cal.4th at
pp. 1040-1041.)

Plaintiff
alleges Safeway’s meal period policy until 2006 did not include the required
second meal period for drivers who worked more than 10 hours. He claims the collective bargaining
agreements contain Safeway’s only statements of policy authorizing meal
periods, and the first of those agreements, as noted earlier, did not provide
for second meal periods.

Safeway
acknowledges the first collective bargaining agreement did not address second
meal periods. However, it introduced
evidence at the trial court it claims establishes that Safeway did in fact
authorize second meal periods for employees who worked more than 10 hours. Three dispatchers, who served as the drivers’
daily supervisors, declared they provided enough time in their assignments for
drivers to take a second meal period if their work would exceed 10 hours. One driver, when asked in a deposition if he
could stop for a second meal period if he wanted, said he could stop for three
or four. Based on this evidence, Safeway
asserts plaintiff’s claim is not suitable for class adjudication because there
was no basis for the trial court to find that Safeway uniformly failed to
provide second meal periods.

This evidence,
however, is insufficient. “An employer
is required to authorize and permit the amount of rest break time called for
under the wage order for its industry.
If it does not -- if, for example, it adopts a uniform policy
authorizing and permitting only one rest break for employees working a
seven-hour shift when two are required -- it has violated the wage order and is
liable.” (Brinker, supra, 53 Cal.4th at p. 1033.) Safeway’s evidence does not establish Safeway
in fact authorized and permitted second meal periods to drivers who worked
longer than 10 hours. There is no
indication the drivers were aware they were entitled to take a second meal
period if their shifts exceeded 10 hours.


And in fact,
other evidence in the record indicates Safeway as a matter of policy did not
authorize second meal periods. James
Williams, Safeway’s transportation superintendent, declared that from 1996
until October 2004, he regularly provided a letter instructing on meal periods
to each driver who worked out of the Tracy distribution center. The letter informed the drivers: “You are entitled to a 30 min. break and 2
fifteen min. breaks, this time is yours and it must be logged off duty.” The letter did not inform the drivers they
were also entitled to a second meal period if their shift exceeded 10 hours.

Williams
distributed the letter often. He gave
the letter to each new driver hired by Safeway.
In August 2003, when Safeway took over the distribution center, he gave
a copy of the same letter to every driver.
He also posted the letter in the drivers’ break room at the distribution
center. In addition, he periodically
instructed the dispatchers to pass out the letter during a talk with the
drivers at each dispatch time throughout the day.

Thus, at least
through October 2004, the drivers were routinely told by Safeway in the form of
company policy that they were entitled to only one meal period. The collective bargaining agreement provided
only one meal period, and the policy enforced by Safeway’s transportation
superintendent provided only one meal period.
This is sufficient evidence of a uniform policy applied to a group of
employees in violation of the wage and hour laws, and thus the claim against it
is amenable to class treatment.

No substantial
evidence supports the trial court’s conclusion that this claim raises
predominantly individual issues. No
individualized issue of waiver of a second meal period ever arises if a driver
was not aware he was authorized to take the break. (Brinker,
supra, 53 Cal.4th, at p. 1033.)
Resolving this claim will involve common evidence and proof, and thus
can be accomplished most efficiently as a class action. The meal period subclass of drivers must be
certified.

IV

Certification of Wage Statement Subclass

Plaintiff claims Safeway failed to
provide wage statements, or paystubs, that comply with California law. He argues the statements do not enable
employees to verify they have been properly paid, as required by Labor Code
section 226.

The trial court determined
plaintiff could not show commonality on this issue because “class members did
not suffer any common injury from allegedly defective wage statements. Plaintiff does not allege that any defect in
the wage statements deprived drivers of wages owed, and he has alleged no other
common injury.”

Plaintiff claims the trial court’s
ruling is in error because workers suffer a common injury when common elements
of a wage statement cause employees difficulty in reconstructing pay records
and require them to engage in mathematical computations to determine whether
they were in fact paid for all hours worked.
We conclude the trial court’s holding is not supported by substantial
evidence, as plaintiff alleges common injury.

Labor Code section 226 requires
employers to furnish employees “an accurate itemized statement in writing
showing (1) gross wages earned, (2) total hours worked by the employee [except
for an exempt, salaried employee], (3) the number of piece-rate units earned
and any applicable piece rate if the employee is paid on a piece-rate

basis . . . , 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 . . . .”
(Lab. Code, § 226, subd. (a).)

An employee suffering injury as a
result of an employer’s knowing and intentional failure to provide the required
statement may recover actual damages or a statutory rate of damages. (Lab. Code, § 226, subd. (e).) “While there must be some injury in order to
recover damages, a very modest showing will suffice.” (Jaimez
v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1306.) “ ‘These injuries included the possibility of
not being paid overtime, employee confusion over whether they received all
wages owed them, difficulty and expense involved in reconstructing pay records,
and forcing employees to make mathematical computations to analyze whether the
wages paid in fact compensated them for all hours worked.’ ” (Ibid.,
quoting Elliot v. Spherion Pacific Work,
LLC (C.D. Cal 2008) 572 F.Supp.2d 1169, 1181.) Both plaintiff and Safeway agree “the
‘injury’ [Labor Code] Section 226 was intended to prevent is the employee’s
inability to determine whether he has actually been paid for all work he
performed.”

Plaintiff alleges Safeway’s wage
statements do not allow a driver to determine whether the wages he was paid
compensated him for all of the work he performed. Although the drivers’ pay is based primarily
on miles driven, the statements do not identify the rates applied to the
mileage. Because the wage statements do
not disclose which rates were applied to any of the miles driven, a driver,
plaintiff claims, cannot determine whether he was paid accurately without
engaging in cumbersome mathematical calculations. The driver must refer to his individual trip
sheets and the mileage rates contained in the collective bargaining agreements
to determine if he was paid correctly for each trip. The trip sheets record the times, starting
and ending locations, and distances of each segment of a trip. The collective bargaining agreements contain
over 2,000 different rates that are applied based on the times and starting and
ending locations of each segment of each trip.
The driver must apply these rates to the information derived from the
trip sheet for each segment of each trip in order to determine the pay he
earned for each trip and whether he was in fact paid the correct amount. Moreover, plaintiff alleges, Safeway updated
the mileage rate annually without providing drivers with the new rates. Having to recalculate mileage pay from
sources outside the wage statement, plaintiff argues, is the type of injury
Labor Code section 226 was enacted to prevent, and it is an injury common to
all drivers due to the structure of Safeway’s wage statements.

Safeway does not dispute the
calculations the employees must do in order to verify their mileage pay. Rather, it argues plaintiff’s allegations are
only that the wage statements are inaccurate, and no injury results from mere
inaccuracy. (See Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136,
1142-1143.) This argument misstates
plaintiff’s claim. Plaintiff does not
claim the statements are merely inaccurate.
He claims he and his fellow drivers cannot determine whether the
statements are accurate without relying on other documents to perform
calculations because the statements do not include all of the information Labor
Code section 226 requires.

Plaintiff’s argument goes to the
structure of the wage statements. As a
result, his and the other drivers’ claims of injury on account of the wage
statements will be resolved by means of common proof. The structural omissions in the wage
statements, and their alleged violation of Labor Code section 226, are, like
employer policies, the types of matters best resolved by class adjudication.

Safeway asserts there is no common
injury. It claims that in this instance,
injury can be determined only on an individualized basis to learn whether each
driver in fact had to engage in extra and cumbersome calculations to verify his
mileage pay. It relies on deposition
testimony by various drivers to assert that 75 percent of the drivers in fact
were able to verify their mileage pay from the wage statements and thus
suffered no injury.

Plaintiff counters that the
testimony cited by Safeway does not support its contention. The drivers cited by Safeway testified they
could calculate their pay, but could do so only by relying on other sources
besides the wage statements, such as their trip sheets. They also claimed these extra calculations
took from 10 to 20 minutes.

We need not engage in this
evidentiary battle. Plaintiff’s
allegation of deficient wage statements applies uniformly to every wage
statement issued by Safeway to its drivers.
None of them list the rates by which the drivers’ mileage pay was
calculated. If Labor Code section 226
requires wage statements to include those rates in wage statements, perhaps as
part of its requirement to include the number of piece-rate units earned and
the piece-rate applied, then plaintiff has alleged sufficient common injury for
class adjudication. All of the drivers
received wage statements that contained the identical alleged defects and
allegedly caused the same injury.

The trial court’s conclusion that
plaintiff failed to allege common injury for its wage statement subclass is not
supported by the evidence. The wage
statement subclass must be certified.

DISPOSITION

The order denying plaintiff’s
motion for class certification is reversed.
The matter is remanded to the trial court with instructions to grant
plaintiff’s motion to certify the





class, subdivided into the three subclasses. Costs on appeal are awarded to
plaintiff. (Cal. Rules of Court, rule
8.278, subd. (a).)





NICHOLSON , Acting P. J.







We concur:







MAURO , J.







HOCH , J.