Trevino v. Golden State FC LLC ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JUAN TREVINO, CHRISTOPHER WARD, LINDA QUINTEROS, ROMEO 10 PALMA, BRITTANY HAGMAN,1 LEAD CASE NO. 1:18-cv-00120-DAD-BAM 11 ALBERTO GIANINI, and JUAN C. AVALOS, on behalf of themselves and all Member Case No: 1:18-cv-00121-DAD-BAM 12 others similarly situated, Member Case No: 1:18-cv-00567-DAD-BAM Member Case No: 1:18-cv-01176-DAD-BAM 13 Plaintiffs, Member Case No: 1:17-cv-01300-DAD-BAM 14 v. FINDINGS AND RECOMMENDATIONS 15 REGARDING (1) PLAINTIFFS’ MOTION GOLDEN STATE FC LLC, a Delaware FOR CLASS CERTIFICATION AND (2) 16 Limited Liability Company; DEFENDANTS’ MOTION IN LIMINE 17 AMAZON.COM INC., a Delaware Corporation, AMAZON FULFILLMENT (Docs. 96, 98, 125) 18 SERVICES, INC., a Delaware Corporation, 19 Defendants. 20 21 22 23 Findings and Recommendations 24 I. INTRODUCTION 25 Plaintiffs Juan Trevino, Christopher Ward, Linda Quinteros, Romeo Palma, Alberto 26 Gianini and Juan C. Avalos, on behalf of themselves and all others similarly situated, bring this 27 1 On December 9, 2019, pursuant to the parties’ stipulation, Plaintiff Brittany Hagman was dismissed from 28 this action as a putative class representative without prejudice. (Docs. 106, 109.) 1 consolidated class action against defendants Golden State FC, LLC (now known as 2 Amazon.com Services LLC), Amazon.com, Inc., and Amazon Fulfillment Services, Inc. (now 3 known as Amazon.com Services LLC) (collectively, “Amazon”). Plaintiffs move for class 4 certification pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). (Docs. 96, 98.) 5 The motion was referred to United States Magistrate Judge Barbara A. McAuliffe for issuance 6 of findings and recommendations in accordance with 28 U.S.C. § 636(b)(1)(B) and (C). (Doc. 7 112.) 8 Subsequent to the motion for class certification, Amazon moved to exclude the 9 testimony and opinions of Plaintiffs’ expert, Dr. Brian Kriegler, submitted in support of 10 Plaintiffs’ motion for class certification. (Doc. 125.) That motion also was set to be heard in 11 conjunction with Plaintiffs’ motion for class certification. 12 A hearing on the motions was held via video conference on May 12, 2021, before the 13 Honorable Barbara A. McAuliffe. Counsel Peter Dion-Kindem, Lonnie Blanchard, Isandra 14 Fernandez, Shawn Westrick, Alvin Lindsay and Joshua Haffner appeared via Zoom on behalf of 15 Plaintiffs. Counsel Katherine Smith, Jason Schwartz and Helen Avunjian appeared via Zoom 16 on behalf of Amazon. Having considered the moving, opposition and reply papers and the 17 parties’ arguments, it is recommended that Plaintiffs’ Motion for Class Certification be 18 GRANTED IN PART and DENIED IN PART, and that Amazon’s motion to exclude the 19 testimony and opinions of Dr. Kriegler be DENIED as moot. 20 II. BACKGROUND 21 A. Factual and Procedural Background 22 This matter is a consolidated action comprised of five wage and hour lawsuits originally 23 filed in the Central and Eastern Districts of California. On March 28, 2019, Plaintiffs filed a 24 First Amended Consolidated Class Action Complaint (the “Complaint”) seeking to bring wage 25 and hour claims on behalf of all current and former non-exempt hourly workers employed by 26 Amazon in California for the period of four (4) years prior to July 12, 2017 to the present. 27 (Doc. 65, Complaint at ¶ 21.) 28 1 Amazon.com, Inc. (“Amazon.com”) is one of the world’s largest and well-known on- 2 line retailers. Amazon.com fills customer orders and ships them based out of a network of 3 fulfillment, sorting, distribution and shipping centers. (Doc. 98-1 at 6.)2 According to the 4 allegations in the Complaint, Amazon operates at least nine different fulfillment centers for 5 Amazon.com in California, which are located in San Bernardino, Rialto, Eastvale, Tracy, 6 Moreno Valley, Redlands, and Patterson City. They are in San Bernardino, Riverside, San 7 Joaquin, Stanislaus, and Riverside counties. (Complaint at ¶ 17.) 8 Plaintiff Juan Trevino worked as a Fulfillment Associate in Amazon’s fulfillment center 9 located in Tracy, California, from March 14, 2017 through May 6, 2017. (Complaint at ¶ 8.) 10 Plaintiff Christopher Ward worked in various positions at Amazon’s fulfillment center located 11 in San Bernardino, California, from May 24, 2015 to November 23, 2016. (Id. at ¶ 9.) Plaintiff 12 Linda Quinteros worked in various positions at Amazon’s fulfillment center located in 13 Patterson, California, from October 17, 2013 to December 13, 2016. (Id. at ¶ 10.) Plaintiff 14 Romeo Palma currently is employed at Amazon’s fulfillment center in Patterson, California. 15 (Id. at ¶ 11.) Plaintiff Alberto Gianini worked as a Warehouse Associate in Amazon’s 16 fulfillment center located in San Bernardino, California from October 2014 through August 17 2016.3 (Id. at ¶ 13.) Plaintiff Juan C. Avalos worked in the outbound department, processing 18 packages that were going to be shipped out in Amazon’s fulfillment center located in Moreno 19 Valley, California from July 2016 through May 2017. (Id. at ¶ 14.) 20 Plaintiffs forward claims for the following wage and hour violations: (1) failure to pay 21 wages for all hours worked, including overtime, (2) meal period violations, (3) rest period 22 violations, (4) wage statement violations, (5) failure to pay wages under California Labor Code 23 § 203, (6) unfair business practices, and (7) violations of the California Business and 24 Professions Code (Private Attorneys General Act claim). (Doc. 65.) 25 26 2 Page number citation is based on the Court’s CM/ECF pagination. 27 3 The Complaint alleges that Plaintiff Gianini was employed by Amazon “from October 2104.” (Complaint at ¶ 13.) The year “2104” is an apparent typographical error, which the Court construes as “2014.” 28 1 With regard to the claim for failure to pay for all hours worked, Plaintiffs allege that 2 Amazon instituted a variety of policies resulting in violations. These policies include: (1) 3 scheduling employees for 10-hour shifts, but during pre-holiday periods, requiring Plaintiffs and 4 putative class members to work 11 or 12-hour shifts (Complaint at ¶ 31); (2) a uniform policy of 5 rounding actual time entries down to the nearest total one-tenth hour to conform to shift 6 schedule, not actual time worked (Id. at ¶ 32); (3) a uniform policy of providing a five-minute 7 grace period excusing an employee who clocks in late for a work shift if he or she clocked in 8 during that five-minute window, but if the employee was more than five minutes late, not 9 compensating the employee for the remainder of the first hour worked and deducting an hour of 10 unpaid time from the employee’s accumulated unpaid time hours (Id. at ¶ 34); (4) failing to pay 11 shift premiums to all employees who worked shifts eligible to receive them (Id.); (5) an 12 alternative workweek and shift scheduling policy and practice that required a four-day 13 workweek and ten-hour workdays that undercompensated employees for two hours of their 14 working time and systematically reflected fewer overtime hours than they worked (Id. at ¶ 36); 15 (6) a policy requiring Plaintiffs and putative class members to routinely work shifts over eight 16 (8) hours in a day and over forty (40) hours in a work week, but not paying appropriate overtime 17 rate for all such hours (Id. at ¶ 37); and (7) failing to compensate Plaintiffs and putative class 18 members for time spent going through Amazon’s security procedures4 (Id. at ¶ 38). 19 With regard to the claim for failure to provide lawful meal periods, Plaintiffs allege that 20 Amazon engaged in a number of policies and practices that resulted in violations. These 21 policies and practices include: (1) requiring fulfillment center employees to work shifts greater 22 than five (5) hours without providing them with timely, uninterrupted duty-free meal periods of 23 not less than thirty (30) minutes because they were required to clock-out at the beginning of 24 their meal periods and were then subject to security procedures both to leave the work site and, 25 if they left the work site, were subject to security procedures to re-enter the work site before 26 they could clock-in (Complaint at ¶ 33); (2) failing to provide Plaintiffs and putative class 27 4 The Court will refer to Amazon’s exit security procedures as both “exit security procedures” and “exit 28 security process,” as the parties use these terms interchangeably. 1 members with a second 30-minute meal period on the shifts in which they worked over ten (10) 2 hours and being provided with a purported “California Meal Period Waiver Agreement” that did 3 not clearly state the terms and conditions under which the waiver would apply (Id. at ¶ 44); (3) 4 shortening of meal periods due to off-the-clock work and rounding and untimely meal periods 5 after the fifth hour of work on shift (Id. at ¶ 45); and (4) failing to compensate employees for 6 each meal period not provided or inadequately provided (Id. at ¶ 46). 7 With regard to the claim for failure to provide rest periods, Plaintiffs allege that Amazon 8 engaged in a number of policies and practices that resulted in violations. These policies and 9 practices include: (1) uniformly failing to authorize and permit Plaintiffs and putative class 10 members to take their required ten (10) minute rest periods for every four (4) hours of work or 11 major fraction thereof or to take a third ten-minute rest break when they worked shifts over ten 12 (10) hours in a day (Complaint at ¶ 48); (2) failing to relieve employees of all duties and 13 relinquish control over how employees spend time during rest periods by requiring them to walk 14 to remote break room locations during rest breaks (Id. at ¶ 49); (3) enforcing a uniform policy 15 preventing Plaintiffs and the putative class members from leaving the fulfillment center 16 premises during their rest breaks under a uniformly applied policy that admonished that “leaving 17 company premises without permission during assigned work hours” is “extremely serious” and 18 may result in “termination of employment” (Id. at ¶ 50); and (4) failing to compensate 19 employees with an additional hour of pay for each day Amazon failed to provide them with 20 adequate rest breaks (Id. at ¶ 53). 21 With regard to the claim for wage statement violations, Plaintiffs allege that Amazon 22 violated California Labor Code § 226(a) by failing to provide Plaintiffs and putative class 23 members with wage statements that accurately showed (1) gross wages actually earned, (2) total 24 hours worked, (3) net wages actually earned, and (4) applicable hourly rates and the 25 corresponding number of hours worked at each hourly rate (Complaint at ¶¶ 57-60). 26 With regard to the claim for failure to timely pay wages due at termination, this is a 27 derivative claim. Plaintiffs allege that members of the putative class that were terminated 28 during the relevant time period were not timely paid the wages earned and unpaid that were due 1 to them, including wages at the appropriate rate for all hours worked and meal and rest period 2 premiums as alleged in the Complaint. (Complaint at ¶ 68.) 3 With regard to the unfair business practices and PAGA claims, these also are derivative 4 claims based on the alleged Labor Code violations. (Complaint at ¶¶ 74, 80.) 5 On November 22, 2019, Plaintiffs moved to certify eleven classes pursuant to Fed. R. 6 Civ. P. 23(a) and (b). (Doc. 96 [Sealed].) Pursuant to a sealing order, Plaintiffs filed redacted 7 briefing on November 26, 2019, and December 10, 2019. (Docs. 98, 110.) Amazon opposed the 8 motion by redacted briefing on January 13, 2020, and Plaintiffs replied on January 30, 2020. 9 (Docs. 119, 128.) On January 24, 2020, Amazon filed a separate motion to exclude the 10 testimony of Plaintiffs’ expert witness, Dr. Kriegler. (Doc. 125.) Plaintiffs opposed the motion 11 to exclude (Doc. 133), and Amazon replied (Doc. 135). 12 Subsequent to the completed briefing, the parties filed notices of new authority 13 addressing the following opinions: Frlekin v. Apple Inc., 8 Cal.5th 1038 (2020) (Doc. 137); 14 Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020) and Mays v. Wal-Mart Stores, Inc., 15 904 Fed.App’x 641 (9th Cir. 2020) (Doc. 140); Frlekin v. Apple, Inc., 973 F.3d 947 (9th Cir. 16 2020), amended and superseded by Frlekin v. Apple, Inc., 979 F.3d 639 (9th Cir. 2020) (Doc. 17 149); Donohoe v. AMN Services, LLC, 11 Cal.5th 58 (2021) (Doc. 154); Olean Wholesale 18 Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021) (Doc. 158); 19 and Magadia v. Wal-Mart Associates, Inc., ---F.3d---, 2021 WL 2176584, at *8 (9th Cir. May 20 28, 2021) (Doc. 163). 21 B. Proposed Classes 22 As indicated, Plaintiffs seek certification of eleven classes. They are as follows: 23 Class 1. Unpaid Wages Class (Hours Worked Claim Based on Control of Employees through Mandatory Exit Security Procedures) 24 All non-exempt employees employed by Amazon.com Services, Inc.5 or 25 Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 26 the period from July 12, 2014 and ending on the date of certification or as otherwise 27 5 This class would include Golden State FC, LLC employees as this company merged with Amazon.com 28 Services, Inc. 1 determined by the Court who were required to go through a metal detector security process to exit the facility. 2 3 (Doc. 98-1 at 10.) 4 Class 2. Unpaid Wages Class (Controlled Meal Periods) 5 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 6 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who took a meal period and who were required to go 7 through a metal detector security process to leave the facility during such meal 8 period and were not paid for the time of such meal period. 9 (Doc. 98-1 at 15.) 10 Class 3. Meal Period Violations for Controlled Meal Periods 11 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 12 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who worked a shift longer than six hours and who were 13 required to go through a metal detector security process to leave the facility during 14 such meal periods and were not paid a meal period premium for such shifts. 15 (Id. at 16-17.) 16 Class 4. Rest Periods Violations for Controlled Rest Periods 17 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 18 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who worked a shift longer than three and one-half hours 19 and were subject to a policy that leaving company premises without permission 20 during assigned work hours was a serious infraction that subjected them to termination or who were required to go through a metal detector security process 21 to leave the facility during the rest period and were not paid a rest period premium for all such shifts. 22 23 (Id. at 18.) 24 Class 5. Improper Rounding Class 25 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 26 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who were subject to a rounding practice that resulted in 27 them being paid less than they would have received had no such rounding practice 28 been utilized for such employees. 1 (Id. at 19.) 2 Class 6. Invalid Second Meal Period Waiver Class 3 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 4 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who signed any meal period waiver in the forms attached 5 as Exhibit 12 to the Declaration of Peter R. Dion-Kindem in Support of Motion for 6 Class Certification and worked more than 10 hours in a day, did not receive a second 30 minute meal period, and did not receive one hour of pay at the class 7 member’s regular rate of compensation for such day. 8 (Id. at 20.) 9 Class 7. Third Rest Period Class 10 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 11 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who were scheduled to work a 10-hour shift and worked 12 more than 10 hours and who were not authorized or permitted to take a third 13 uninterrupted, duty-free, and control-free 10-minute rest period and did not receive one hour of pay at the class member’s regular rate of compensation for such day. 14 15 (Id. at 20-21.) 16 Class 8. Direct Violation of Section 226(a)(2) Wage Statement Class 17 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. in California at any time during the period from July 12, 2016 18 and ending on the date of certification or as otherwise determined by the Court who did not receive an itemized statement in writing accurately showing the total hours 19 worked by the employee where the wage statements reflect a line item for regular 20 hours worked and at least one other line item for other types of hours worked other than regular overtime or double time, such as shift differential hours worked. 21 22 (Id. at 21.) 23 Class 9. Derivative Wage Statement Class 24 All members of any of Classes 1 through 7 who, during the period from July 12, 2016 and ending on the date of certification or as otherwise determined by the 25 Court, were not provided with accurate itemized wage statements with all the information required by Labor Code Section 226(a)(1), (2), (5) and (9). 26 27 /// 28 1 Class 10. Section 203 Subclass 2 All members of any of Classes 1 through 7 who, during the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the 3 Court, were either voluntarily or involuntarily separated from their employment and did not timely receive all wages owing pursuant to Labor Code Section 201 or 4 202. 5 Class 11. UCL Class 6 All non-exempt employees employed by Amazon.com Services, Inc. or 7 Amazon.com, Inc. at any of Defendants’ facilities in California at any time during the period from July 12, 2013 and ending on the date of certification or as otherwise 8 determined by the Court who are owed restitution as a result of Defendants’ 9 business acts and practices that are found to be unlawful, deceptive, and/or unfair. 10 (Id. at 24.) 11 C. Challenged Policies 12 Many of the challenged policies overlap within and among the various classes. The 13 Court provides a summary of the policies along with a reference to the particular class or 14 classes. 15 1. Payment of Lawful Wages 16 Exit Security Procedures (Classes 1-4) 17 Plaintiffs contend that Amazon implemented uniform exit security procedures at all the 18 facilities where Plaintiffs and putative class members workers, which required all of the putative 19 class members to pass through metal detectors and undergo security procedures in order to exit 20 the facilities at the end of their shifts, for their meal periods or to exit for any other reason. 21 Plaintiffs contend that employees were under Amazon’s “control” from the time of facility 22 entrance (swipe-in) until the time employees passed through the metal detectors and exited 23 (swipe-out). Plaintiffs further contend that by Amazon’s uniform policy, it failed to pay 24 Plaintiffs and putative class members for all hours worked, including the time they were under 25 Amazon’s control after clocking out while they were subjected to Amazon’s exit security 26 procedures. 27 /// 28 1 Rounding Policy (Classes 5 and 7) 2 3 4 5 6 7 8 (Doc. 119-2 at 343, Ex. X (Sealed)).] Plaintiffs claim that Amazon underpaid putative 9 class members in the aggregate due to rounding. 10 2. Meal and Rest Periods (Classes 3-7) 11 Plaintiffs contend that by requiring mandatory security screening exit procedures to 12 leave the facilities, Amazon failed to relinquish all control over employees’ activities during 13 meal and rest periods, including control over where such breaks are taken. Plaintiffs second 14 theory of liability is that Amazon’s written uniform policies prohibit employees from leaving 15 the premises for rest periods without permission. 16 Amazon allegedly also failed to authorize and permit a third, 10-minute rest period for 17 many of the shifts worked over 10 hours. Class members were also not provided with a second 18 30-minute meal period on the shifts they worked over 10 hours. Plaintiffs admit that Amazon 19 obtained meal period waivers from some employees, but claim that certain of those waivers are 20 invalid and unenforceable, as they are ambiguous and self-contradictory, misrepresent and fail 21 to fully disclose class members’ rights, and unlawfully purport to waive more than just second 22 meal periods. (Doc. 98 at 7-8.) 23 3. Wage Statements (Class 8) 24 Plaintiffs’ claims regarding Amazon’s failure to provide accurate wage statements derive 25 both from the face of the wage statements and from Plaintiffs’ substantive claims. As to the 26 wage statements themselves, Plaintiffs assert that Amazon provided wage statements that did 27 not have a line item for “total hours worked” in violation of California Labor Code section 28 1 226(a)(2). As to the derivative claims, they stem from Plaintiffs’ assertions of substantive wage 2 violations. 3 4. Payment of Timely Wages and UCL Claims (Classes 9-11) 4 Plaintiffs’ claims for failure to pay timely wages under Labor Code § 203 at the 5 termination of employment and their claims under the UCL are derivative and based on 6 Amazon’s alleged substantive violations. 7 III. MOTION FOR CLASS CERTIFICATION 8 A. Legal Standards 9 1. Federal Rule of Civil Procedure 23 10 Class certification of Plaintiffs’ claims is governed by Federal Rule of Civil Procedure 11 23. Whether or not to certify a class is within the discretion of the Court. United Steel, Paper & 12 Forestry, Rubber, Mfg. Energy, Allied Indus. & Service Workers Int’l Union, AFL–CIO CLC v. 13 ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010). 14 A class may be certified only if: (1) the class is so numerous that joinder of all members 15 is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or 16 defenses of the representative parties are typical of the claims or defenses of the class; and (4) 17 the representative parties will fairly and adequately protect the interests of the class. Fed. R. 18 Civ. P. 23(a). These requirements are “commonly referred to as the numerosity, commonality, 19 typicality, and adequacy requirements.” Norris–Wilson v. Delta–T Group, Inc., 270 F.R.D. 596, 20 601 (S.D. Cal. 2010). 21 In addition to the requirements imposed by Rule 23(a), Plaintiffs bear the burden of 22 demonstrating that the class is maintainable pursuant to Rule 23(b). Narouz v. Charter 23 Commc’ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). In this case, Plaintiffs seek class 24 certification under Rule 23(b)(3). To certify a class under Rule 23(b)(3), Plaintiffs must 25 demonstrate: (1) “questions of law or fact common to class members predominate over any 26 questions affecting only individual members,” and (2) a class action is “superior to other 27 available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 28 1 23(b)(3). Plaintiffs bear the burden of satisfying the elements of Rules 23(a) and 23(b)(3). See 2 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). 3 Rule 23 is not a mere pleading standard. “A party seeking class certification must 4 affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to prove 5 that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal- 6 Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Dukes”) (emphasis in original). When 7 considering a motion for class certification, a court must conduct a “rigorous analysis” to 8 determine “the capacity of a classwide proceeding to generate common answers apt to drive the 9 resolution of the litigation.” Id. at 350-51 (citation omitted); Ellis v. Costco Wholesale Corp., 10 657 F.3d 970, 980 (9th Cir. 2011). 11 2. Wage and Hour Claims 12 “In California, wage and hour claims are ... governed by two complementary and 13 occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the 14 Legislature, and a series of 18 wage orders, adopted by the [Industrial Welfare Commission 15 (“IWC”)].” Troester v. Starbucks Corp., 5 Cal.5th 829, 839 (2018), as modified on denial of 16 reh’g (Aug. 29, 2018) (citation and quotation omitted). “The IWC’s wage orders are to be 17 accorded the same dignity as statutes. They are presumptively valid legislative regulations of the 18 employment relationship, regulations that must be given independent effect separate and apart 19 from any statutory enactments.” Id. (citations and quotations omitted). IWC Order No. 2001-7 20 defines “hours worked” as “the time during which an employee is subject to the control of an 21 employer, and includes all the time the employee is suffered or permitted to work, whether or 22 not required to do so.” Cal. Code Regs., tit. 8, § 11070(2)(G). “Hours worked” by an employee 23 are compensable. See id. § 11070(3)(A)(1), 4(B); see also Troester, 5 Cal.5th at 840; Morillion 24 v. Royal Packing Co., 22 Cal.4th 575, 587 (2000). 25 IV. DISCUSSION 26 A. Rule 23(a) Numerosity, Typicality and Adequacy 27 As a preliminary matter, the parties do not dispute the numerosity, typicality and 28 adequacy requirements of Rule 23(a). The Court briefly addresses these requirements. 1 1. Numerosity 2 Rule 23(a)(1) requires the proposed class to be so numerous that joinder of all of the 3 class members would be impracticable. Fed. R. Civ. P. 23(a). “’[I]mpracticability’ does not 4 mean ‘impossibility,’ but only the difficulty or inconvenience in joining all members of the 5 class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913–14 (9th Cir. 1964) 6 (quoting Advert. Specialty Nat’l Ass'n v. Fed. Trade Comm’n, 238 F.2d 108, 119 (1st 7 Cir.1956)). Additionally, the exact size of the class need not be known so long as “general 8 knowledge and common sense indicate that it is large.” Perez-Funez v. Dist. Dir., 611 F.Supp. 9 990, 995 (C.D. Cal. 1984). 10 Amazon does not dispute that Plaintiffs have met the numerosity requirement, 11 suggesting that Plaintiffs’ proposed classes cover “over 200,000 current and former employees 12 who worked in over fifty facilities of various types throughout California.” (Doc. 119 at 6.) 13 For the security screening classes (Classes 1-4), Plaintiffs posit that there are between 14 70,000 and 80,000 people who worked at Amazon facilities in California that had mandatory 15 metal detector security exit procedures. (Doc. 98-1 at 26.) For the wage statement class (Class 16 8), Plaintiffs have identified hundreds of thousands of wage statements for the relevant time 17 period. Further, Plaintiffs have identified Amazon’s admission that over 40,000 employees’ 18 employment ended during the class period. (Id.) Absent a substantive, compelling dispute 19 regarding numerosity, the Court finds that the numerosity requirement is satisfied. 20 2. Typicality 21 In order to meet the typicality requirement, Rule 23(a)(3) requires the claims or defenses 22 of the representative parties be typical of the claims or defenses of the class. Fed. R. Civ. P. 23 23(a)(3). The purpose of Rule 23(a)(3) is “to assure that the interest of the named representative 24 aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th 25 Cir.1992). “The test of typicality ‘is whether other members have the same or similar injury, 26 whether the action is based on conduct which is not unique to the named plaintiffs, and whether 27 other class members have been injured by the same course of conduct.’” Id. 28 1 Plaintiffs contend that the typicality requirement is met because Plaintiffs and the 2 putative class members were subject to the same course of conduct. Plaintiffs also assert that 3 they and the putative class seek recovery based upon the same legal theories and Amazon’s 4 course of conduct. The Court notes that Plaintiffs were employed only at Fulfillment Centers 5 and not at Sorting Centers with metal detectors or any other type of Amazon facility in 6 California. (See Doc. 98-17, Trevino Decl. at ¶ 2 (Tracy); Doc. 98-18, Ward Decl. at ¶ 2 (San 7 Bernardino); Doc. 98-14, Gianini Decl. at ¶ 2 (San Bernardino); Doc. 98-16, Quinteros Decl. at 8 ¶ 2 (Patterson); Doc. 98-13, Avalos Decl. at ¶ 2 (Moreno Valley); Doc. 98-15, Palma Decl. at ¶ 9 2 (Sacramento.) Nonetheless, Amazon does not argue that the typicality requirement is not 10 satisfied here. 11 3. Adequacy of Representation 12 Rule 23(a)(4) provides that the court may certify a class only if “the representative 13 parties will fairly and adequately protect the interests of the class.” The two key inquiries are 14 whether: (1) the named plaintiff and their counsel have any conflicts of interest with other class 15 members; and (2) plaintiff and counsel will vigorously prosecute the action on behalf of the 16 class. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011). 17 Plaintiffs contend that the adequacy requirement is met. In particular, Plaintiffs aver that 18 neither they nor their counsel have conflicts of interest with other class members. Plaintiffs also 19 aver that they are fully prepared to take all necessary steps to fairly and adequately represent the 20 classes and have agreed to abide by all the necessary duties of class representatives, including 21 assisting counsel in the litigation. (Doc. 98 at 26-27.) Plaintiffs also state that counsel 22 representing the named Plaintiffs are competent and experienced in handling class action 23 lawsuits and have done extensive factual and legal research regarding the asserted claims. (Id. 24 at 27.) Amazon does not challenge that the adequacy requirement has been met. 25 B. Rule 23(a) Commonality and Rule 23(b)(3) Commonality - Predominance 26 Rule 23(a)(2) requires “questions of law or fact common to the class.” Fed. R. Civ. P. 27 23(a)(2). Although “any competently crafted class complaint literally raises common 28 questions,” commonality “requires the plaintiff to demonstrate that the class members have 1 suffered the same injury.” Dukes, 564 U.S. at 349-50. “What matters to class certification ... is 2 not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide 3 proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350 4 (internal citations omitted). A class claim “must depend upon a common contention ... of such 5 a nature that it is capable of classwide resolution—which means that determination of its truth 6 or falsity will resolve an issue that is central to the validity of each one of the claims in one 7 stroke.” Id. In assessing commonality, a court’s rigorous analysis may entail some overlap with 8 the merits of the plaintiff’s underlying claim, and class determinations generally involve 9 “considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause 10 of action.” Id. at 351. 11 Under Rule 23(b)(3), the predominance requirement is similar to the Rule 23(a)(2) 12 commonality requirement, but the standard is much higher. Dukes, 564 U.S. at 359; Amchem v. 13 Windsor, 521 U.S. 591, 624-25 (1997) (predominance criterion far more demanding that Rule 14 23(a)’s commonality requirement). “When considering whether to certify a class, it is 15 imperative that district courts ‘take a close look at whether common questions predominate over 16 individual ones.’” Olean, 993 F.3d at 784 (quoting Comcast Corp. v Behrend, 559 U.S. 27, 34 17 (2013)). “[D]istrict courts must perform a ‘rigorous analysis’ to determine whether this 18 exacting burden has been met before certifying a class.” Id. (citation omitted). “This “rigorous 19 analysis” requires “judging the persuasiveness of the evidence presented” for and against 20 certification. Id. (citation omitted). “[A] district court must find by a preponderance of the 21 evidence that the plaintiff has established predominance under Rule 23(b)(3).” Id. 22 1. Exit Screening Classes 23 Plaintiffs’ proposed classes, 1 through 4, with one limited exception discussed below, 24 are comprised of persons who were subject to a “metal detector security process to exit the 25 facility.” The security process, as generally described by Plaintiffs, requires that in order to gain 26 access to the production area of a facility, employees were required to “swipe-in” at a security 27 turnstile near the entrance to the facility using an ID badge. The entrance to the facility did not 28 have a metal detector to gain entry. After “swipe-in,” an employee clocked in by walking to a 1 time clock and clocking in by using their ID badges. After their shifts ended, they were required 2 to clock out and then exit the facility through the mandatory security exit process, which 3 consisted of going through a metal detector and bag check and then “swiping out” at the security 4 turnstile before they could leave the facility. (See, e.g., Doc. 98-14, Gianini Decl. at ¶ 3; 98-15, 5 Palma Decl. at ¶ 3; 98-18, Ward Decl. at ¶ 4 (“In order to gain access to the production area of 6 the facility, I was required to ‘swipe-in’ at a security turnstile near the entrance to the facility 7 using my ID badge. To clock in, I went to a timeclock and clocked in using my ID badge. After 8 my shift was over, I was required to clock out and then exit the facility through the mandatory 9 security exit process, which consisted of going through a metal detector and bag check, 10 including standing for a wand scanner and having my pockets checked, then ‘swiping out’ at the 11 security turnstile before I could leave the facility.”). Similarly, Amazon’s expert, Dr. Michael 12 Ward, generally understood the process as follows: 13 [A]t the start of the workday employees entering a facility may have their entry arrival time recorded at a turnstile or other sensing device at the entry to the work 14 facility. They then “punch in” to a separate “clock” that records time for payroll purposes. At the end of the day, the process is reversed, in that the employee first 15 “punches out” ending their workday. They then proceed to exit the facility and, if 16 a turnstile exists at the facility, this time is also recorded. 17 (Doc. 123 at 10, Ex. A, Expert Report of Michael P. Ward, Ph.D. (“Ward Expert Report”)). 18 According to the evidence, Amazon appears to operate two main types of facilities in 19 California with exit security screening in the form of metal detectors: Sorting Facilities and 20 Fulfillment Centers.6 (Doc. 119-4, Declaration of Cody Carr (“Carr Decl.”) at ¶ 3.) 21 The Court now turns to the specific proposed exit security screening classes for 22 certification. 23 Class 1: All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time 24 during the period from July 12, 2014 and ending on the date of certification or 25 6 Plaintiffs have not clearly identified the total number of facilities at issue for purposes of class certification, and 26 Plaintiffs’ counsel was unable to provide such information when questioned at oral argument. Plaintiffs’ expert understood that there were 12 facilities with metal detectors at the security checkpoint: LGB8, OAK3, OAK4, 27 ONT2, ONT6, ONT8, ONT9, PCA1, SJC7 and SMF1. (Doc. 107-1 at 13). Plaintiffs were also unable to account for variations of the exit screening procedures among the facilities, such as variations in the number of lanes, 28 seasonal variations of screening, or which facilities turned off the metal detectors. 1 as otherwise determined by the Court who were required to go through a metal detector security process to exit the facility. 2 3 For this class, Plaintiffs first claim that “whether the time spent by employees after 4 entering the secured premises and before leaving the secured premises constitutes ‘hours 5 worked’ under California law and whether [Amazon] paid for all hours worked are common 6 issues” that the Court can resolve on a class-wide basis. (Doc. 98-1 at 11-12.) In particular, 7 Plaintiffs assert that the issue of whether “off-the-clock” time spent by class members while 8 they were within Amazon’s facilities is compensable under the “control” test of Wage Order 9 No. 7 is a common question that can be resolved on a class-wide basis. 10 Plaintiffs’ specific theory of “control” is that after entering the facilities, class members 11 could not choose to leave without exiting through the mandatory security exit procedures, and 12 employees were therefore under Amazon’s “control” once they entered the secured facilities 13 until they left the secured facilities after passing through the metal detectors. Plaintiffs argue 14 they should be compensated for that time under Amazon’s “control.” (Doc. 98-1 at 14; Doc. 15 123 at 10, Ex. A, Ward Expert Report (“plaintiffs maintain that all time spent by employees 16 inside of a facility should be compensated—not just the time that they are clocked into and out 17 of work.”). 18 Under this theory, Plaintiffs contend that whether they were under Amazon’s control 19 “throughout the entirety of time they were on Amazon’s premises is a common issue.” (Doc. 20 98-1 at 12.) This would include the time from when employees “swiped in” (entry turnstile or 21 other sensing device) to the time they “swiped out” (exit turnstile). According to Amazon’s 22 evidence, Fulfillment and Sorting Centers, which have metal detectors, use turnstiles to enter 23 and exit the facility. (Doc. 119-4, Carr Decl. at ¶ 3.) 24 Insofar as Plaintiffs claim they are entitled to compensation for the time spent after 25 swiping in (entering the facility) and before clocking in because they could not exit the facility 26 without completing Amazon’s mandatory exit screening process, this claim is not supported by 27 the evidence or record. (Doc. 98-1 at 10.) After entering facilities with an exit screening 28 1 process, and before clocking in, Plaintiffs and putative class members could access lockers and 2 main breakrooms located outside security screening areas. (See, e.g., Doc. 120, Ex. 1, 3 Declaration of Eric Aceves at ¶¶ 1, 31 (Sacramento (SFM1) Fulfillment Center; need to exit 4 security to access main breakroom); Ex. 2, Declaration of Ana Alcala at ¶¶ 1, 7 (San 5 Bernardino (ONT2) Fulfillment Center; “After putting my personal items and storing my lunch 6 in the cubby area near the Main Breakroom, I walk past the security checkpoint . . . I then 7 immediately walk up to a time clock just past security and check in.”); Ex. 4, Declaration of 8 Alma Angeles at ¶¶ 1, 8 (Moreno Valley (ONT6) Fulfillment Center; “Once I go through the 9 turnstiles at the entrance . . . , I go straight to the Main Breakroom without clocking in.”); Ex. 5, 10 Declaration of Barbara Arana at ¶¶ 1, 29 (San Bernardino (ONT2) Fulfillment Center; lockers 11 and break room near the East doors); Ex. 6 Declaration of Nancy Aviles at ¶¶ 1, 7 (Newark 12 (OAK5) Sorting Facility; “After dropping off my lunch in the Main Breakroom . . . , I go 13 straight to the time clocks to clock in.”); Ex. 10, Declaration of Anmol Bhagal at ¶¶ 1, 6-8 14 (Fresno (FAT1) Fulfillment Center; lockers and Main Breakroom outside of security 15 checkpoint); Ex. 15, Declaration of Suzan Butler at ¶¶ 1, 21, 23 (Tracy (OAK4) Fulfillment 16 Center; “The Main Breakroom is inside the facility, but outside of the security checkpoint in the 17 side of the building.”)). Presumptively, employees could enter and exit the facilities without 18 completing the exit security screening process if they only accessed the lockers, main 19 breakrooms or other areas outside of the security checkpoints. In other words, after swiping in 20 at the entrance turnstiles, employees could access the lockers and main breakrooms outside of 21 the security checkpoints and then swipe out and exit the facilities without passing through the 22 metal detectors, so long as they did not enter the secured area beyond the security checkpoints. 23 As a result, Plaintiffs’ theory of control for the time period between swiping-in and clocking-in 24 cannot be certified in the absence of any required exit security screening. Even if employees 25 were required to swipe in and swipe out to access the facilities, such time does not amount to 26 control. See, e.g., Griffin v. Sachs Elec. Co., 390 F.Supp.3d 1070, 1091 (N.D. Cal. 2019) 27 (finding process requiring workers to badge-in and badge-out at security gate “analogous to 28 1 scanning or flashing an employee badge to enter a compound or campus” and finding the time 2 spent badging-in and badging-out did not equate to control). 3 Moreover, there is no uniformity in employee choices made during the time period after 4 entry and before clocking in that would make Plaintiffs’ theory appropriate for resolution on a 5 class wide basis. (See, e.g., Doc. 120, Ex. 3, Declaration of Michael Allgayer at ¶ 6 (“I usually 6 arrive at ONT8 [Moreno Valley] an hour before my shift starts so I can get a really good 7 parking spot. I usually clock in five minutes before my shift start time. When I arrive early, 8 before I clock in, I hang out in the ‘fun zone’ in the facility which has ping-pong tables and an 9 arcade with video games.” ); Ex. 4, Declaration of Alma Angeles at ¶ 6 (“I arrive at Amazon’s 10 ONT6 [Moreno Valley] Fulfillment Center parking lot around 5:00 p.m. for my 6:00 p.m. shift. 11 I arrive early because I prefer to have dinner in the breakroom before I clock in for my shift. I 12 also like to sit and talk with my friends before starting work.”); Ex. 13, Declaration of Thomas 13 Bowlin at ¶¶ 1, 6 (San Bernardino (ONT5) Sorting Center; “I usually arrive at ONT5 anywhere 14 between one to three hours before my shift starts because I like to be early and use the 15 breakrooms to watch the news on television. I usually end up clocking in five minutes before 16 my shift start time.”). 17 Similarly, at the end of an employee’s workday, the time spent after passing through exit 18 security screening, but prior to swiping out to exit appears to suffer from the same substantive 19 defect. As explained by Amazon’s expert, at the end of the workday, the employee clocks out 20 and then may exit the facility through a turnstile, if one exists, where the exit time is recorded. 21 (Doc. 123, Ex. A, Ward Expert Report.) The variability of activities during the time period 22 from clock out to exit the facility suggests to the Court that common issues do not predominate. 23 Amazon has presented evidence that after passing through exit security metal detectors, but 24 before exiting, putative class members engage in a variety of activities. (See, e.g., Doc. 120, Ex. 25 2, Alcala Decl. at ¶ 14 (“After clocking out [at San Bernardino (ONT2) Fulfillment Center], I 26 walk through security . . . [A]fter going through security, I generally do not go right out the 27 entrance doors. Instead, I go to retrieve my lunch bag and any other personal items near the 28 Main Breakroom just inside the Main Entrance. I then exit the building and go home.”); Ex. 8, 1 Declaration of Kenneth Bahena at ¶ 13 (“After clocking out [and going through security 2 screening at Moreno Valley (ONT6) Fulfillment Center], I then go . . .to my locker. Once at my 3 locker, I pick up my keys, cell phone and any other personal items I left and may talk to 4 coworkers. I then exit the building to my car.”); Doc. 121, Ex. 43, Declaration of Efrain 5 Gonzalez Decl. ¶ 14 (“After clocking out [at Patterson (OAK3) Fulfillment Center and] . . . after 6 going through security, I generally do not go right out the entrance doors. Instead, I go to the 7 lockers to retrieve my personal belongings. Sometimes, I sit and talk with some co-workers for a 8 few minutes before I leave. I then exit the building and go home.”); Doc. 122, Ex. 64, 9 Declaration of Fidel Moya, Jr. at ¶ 17 (“After my work is finished and I clock out [at San 10 Bernardino (ONT2) Fulfillment Center], I usually go the restroom, go through the security area, 11 and then go to the East break room on the other side. In the break room, I talk to a group of 12 friends for a few minutes. Often we wait for our whole group of co-workers to get to the break 13 room, grab our stuff, and then leave the facility together.”); Ex. 70, Declaration of Marcus Reed 14 Decl. at ¶¶ 7, 15). (“ [O]ften after [clocking out at Eastvale (LGB3) Fulfillment Center and] 15 going through security instead of going out the front doors, I go to the Main Breakroom and get 16 my personal items . . . I will either sit for a few minutes or just leave through the nearby front 17 entrance to the building.”). 18 As to these two time periods—the time spent after swiping in and before clocking in and 19 the time spent after passing through exit security screening, but prior to swiping out to exit— 20 Plaintiffs’ reliance on Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000) and Ridgeway v. 21 Walmart Inc., 946 F.3d 1066 (9th Cir. 2020), to argue that an employee subject to an employer’s 22 control does not have to be working during that time to be compensated is misplaced. Morillion 23 involved the general question of whether the time agricultural employees were required to spend 24 traveling on their employer’s buses was compensable because they were subject to control of 25 their employer. 22 Cal.4th at 578. The employees in Morillion were required to travel on the 26 buses to and from the fields where they were working and were effectively prohibited from 27 using their travel time for their own purposes. Unlike Morillion, Amazon’s employees were not 28 confined to the facilities with metal detectors either prior to clocking in or after passing through 1 the metal detectors and exiting. Instead, employees could decide what activities to engage in 2 and when to leave at any time while outside of security checkpoints. 3 Ridgeway is similarly unpersuasive for the pre-clock-in and post-security screening 4 periods of time. Ridgeway involved Wal–Mart’s written policy requiring its truck drivers to 5 gain preapproval from management before taking a layover at home and subjecting drivers to 6 disciplinary action for taking an unauthorized layover at home. Ridgeway, 946 F.3d at 1079. 7 The Ninth Circuit found that because Wal-Mart’s policy dictated what drivers could do on 8 layovers and restricted employees from complete freedom of movement during breaks it 9 constituted control under California law. Id. at 1081. Here, Amazon did not constrain 10 employees’ freedom of movement while outside of the security checkpoints and there is no 11 indication that they were required to obtain permission before leaving the premises prior to 12 clocking in or while outside of security checkpoints. 13 Plaintiffs also contend that time spent traveling from the time clocks through the 14 mandatory security exit procedure constitutes “work” under the applicable wage order definition 15 of “suffered or permitted to work.” (Doc. 98-1 at 14-15.) Plaintiffs urge that “[w]hether such 16 time constitutes ‘hours worked’ under California law under the ‘suffered or permitted to work’ 17 test is also an issue that can be resolved on a class-wide basis.” (Id. at 15.) 18 Even if Plaintiffs’ proposed exit screening classes were limited to the time spent after 19 clocking out and then traveling to and passing through metal detectors, the Court does not find 20 that the requirements of commonality and predominance have been met. At first blush, the issue 21 of whether time spent between clocking out and exiting through the metal detector/bag check 22 screening constitutes “work” appears capable of class wide resolution. However, Plaintiffs 23 have not presented evidence demonstrating a uniform exit security securing process or that 24 employees suffered any delay in passing through the exit security screening. In contrast, 25 Amazon has demonstrated that there is no uniform exit security process consistently applied at 26 the relevant facilities throughout the class period. Specifically, Amazon has presented 27 persuasive evidence that screening varied substantially at facilities with metal detectors 28 depending upon the number of screening lanes, the facility’s layout, the procedures during busy 1 periods, and whether metal detectors were operational. The absence of a uniform policy 2 consistently applied throughout the class period precludes resolution of Plaintiffs’ claims on a 3 class wide basis and a class cannot be certified based on exit screening procedures. See Heredia 4 v. Eddie Bauer LLC, No. 16-CV-06236-BLF, 2020 WL 127489, at *4 (N.D. Cal. Jan. 10, 2020) 5 (“It is doubtful that the Court would have certified the class [when it did] had it understood that 6 [Eddie Bauer] did not have a single uniform policy in place” because “[i]t is no longer accurate 7 to say that this case involves ‘a uniform policy consistently applied’ throughout the class 8 period.”); In re Autozone, Inc. Wage and Hour Employment Practices Litig., 2016 WL 4208200 9 at *10 (N.D. Cal. Aug. 10, 2016) (decertifying a class where no uniform in place throughout the 10 class period); see also Hubbs v. Big Lots Stores, Inc., 2017 WL 2304754 at *9 (C.D. Cal. May 11 23, 2017) (denying class certification where plaintiffs failed to present “sufficient evidence to 12 show that there was a common and consistent policy among Defendants to subject all 13 employees at all of their stores to off-the-clock bag checks”); Quinlan v. Macy’s Corp. Servs., 14 Inc., 2013 WL 11091572, at *4 (C.D. Cal. Aug. 22, 2013) (denying certification of a class of 15 employees who were subject to off-the-clock searches finding plaintiffs had not satisfied the 16 commonality requirement because stores “implement[ed] different strategies,” altered their 17 strategies “depending on the time of day, day of the week, season, [and] level of traffic,” and 18 some stores had no searches at all). 19 The record includes critical evidence demonstrating that between 2014 to present, during 20 the proposed class period, the majority of the Sorting Facilities that operated with metal 21 detectors have since turned off those detectors. (See Doc. 119-4, Carr Decl. at ¶ 3). The record 22 also includes evidence that there were significant periods of time when the metal detectors at 23 Sorting Facilities in Newark (OAK5) and San Bernardino (ONT5) were not operational. (See 24 Doc. 120, Ex. 6, Aviles Decl. at ¶ 19 (“I do not think the ‘metal detectors’ even work and may 25 not even be turned [on]. For the entire time I have worked at Amazon [Sorting Facility in 26 Newark (OAK5)], I have never hear [sic] the metal detectors go off and it does not even seem to 27 me that a security person is even watching them. Nobody checks our bags when we leave the 28 building.”); Ex. 13, Bowlin Decl. at ¶ 12 (beginning two months prior to October 2019 there 1 had been “no security screening to exit ONT5”); Ex. 29, Declaration of Maria Cruz ¶ 18 (“they 2 turned off the metal detectors about one month” prior to October 2019). 3 Even if operational throughout the duration of the proposed class period, Amazon’s 4 evidence demonstrates that there is no uniformity in application of the screening process among 5 Amazon’s facilities that have metal detectors because the numbers of detectors and lanes vary. 6 Some facilities have only two lanes and others have as many as ten lanes. (Doc. 119-4, Carr 7 Decl. at ¶ 5.) For example, Amazon’s expert, Dr. Elizabeth Arnold, identified that the OAK3 8 Fulfillment Center had 5 lanes, the ONT2 Fulfillment Center had 2 entrances with 4 lanes each, 9 the LAX5 Sorting Center had 3 lanes, and the OAK5 Sorting Center—with non-operational 10 metal detectors—had 4 lanes.7 (Doc. 123, Ex. B, Declaration of Elizabeth Arnold, M.S. 11 (“Arnold Decl.”), Table 1.) 12 Plaintiffs contend that minor variances in how the mandatory screening procedures at 13 facilities with active metal detectors are conducted do not defeat commonality, relying on Lao v. 14 H&M Hennes & Mauritz, L.P., 2019 WL 7312623, at *1 (N.D. Cal. 2019). Lao involved 15 H&M’s “alleged policy of requiring all retail employees to undergo a visual inspection by a 16 manager (or other designated person) after they clock out—either at the end of a shift or at 17 closing—but before they leave the H&M store where they work.” Id. at *1. H&M reportedly 18 used “two types of security checks: (1) bag inspections, where only retail employees that have a 19 bag must allow a manager to check the bag before leaving, and (2) visual inspections, where 20 every retail employee—regardless of whether they have a bag—must inform a manager of when 21 they leave, allowing the manager to observe their person.” Id. The plaintiff argued that, under 22 California law, the time taken for the visual inspections and for any waiting prior to the 23 inspections was compensable. H&M argued that the policy’s inconsistent application to various 24 class members and across different times precluded a finding of commonality. The district court 25 rejected H&M’s argument, finding that whether retail employees were required to tell a 26 7 Additional examples: ONT8 Fulfillment Center with 6 lanes (Doc. 120, Ex. 3, Allgayer Decl. at ¶ 16; Ex. 27 17, Cassino Decl. at ¶ 16); FAT1 Fulfillment Center with at least 8 lanes, some express (Doc. 120, Ex. 10, Bhagal Decl.; Ex. 19. Cathcart Decl. at ¶ 27); and LGB3. Eastvale Fulfillment Center with approximately 10 lanes (Doc. 28 122, Ex. 70, Reed Decl. at ¶ 23; Ex. 72, Robles Decl. at ¶ 22). 1 manager that they were leaving allowing the manager to see them, to stand in front of a security 2 camera so they could be inspected remotely, or to be escorted to the exit had no material impact 3 on the commonality analysis. The court found that these purported inconsistencies did not 4 negate plaintiff’s allegations that, before they are permitted to leave, all class members must (1) 5 inform a manager that they are leaving, and (2) submit to a visual inspection of their person. The 6 court also found that the purported inconsistencies did not suggest that that the visual 7 inspections were not mandatory. Id. at *5. 8 The instant action is distinguishable from Lao in two material respects. First, Amazon 9 has presented cogent evidence that multiple facilities ceased using the metal detectors during the 10 proposed class period. Second, Amazon has demonstrated that facilities did not require 11 mandatory screening of employees during certain periods, such as to account for peak seasons 12 when the lanes were subject to “flushing” to prevent long lines to pass through security. (See 13 Doc. 119-6, Declaration of Jimmy Oholt Decl. at ¶ 7 (During ‘Peak’ season . . . at ONT2 and 14 LGB4 there is a ‘flush the line’ practice . . . “security officers would “flush” the lanes and push 15 associates through the detectors without requiring them to undergo screening. If associates set 16 off the metal detectors when security was pushing people through, those associates did not have 17 to go through secondary screening.”) In short, there were periods of time in which the screening 18 process was not mandatory or was not applied to all putative class members. Unlike in Lao, the 19 absence of screening is an inconsistency in substance, not form. 20 It appears from their reply that Plaintiffs attempt to account for the cessation in use of 21 metal detectors—at least for the Sorting Centers—by arguing that “Defendants do not dispute 22 that employees were required to pass through the security to leave the building at the end of 23 their shifts, during meal periods, or during rest periods at facilities with working exit metal 24 detectors.” (Doc. 128 at 5) (emphasis added). The Court construes the phrase “facilities with 25 working exit metal detectors” as a proposed modification of the class definition for Classes 1 26 through 4. The Court may consider class definitions first raised in a plaintiff's reply brief. See, 27 e.g., Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 28 159, 161 n. 1 (C.D. Cal. 2002) (court considered amended definition proposed reply brief). 1 Moreover, the Court has the authority to redefine a class, and there is no reason the Court should 2 not consider the amended definition arguably proposed by a plaintiff. See Garcia v. 3 Schlumberger Lift Sols., 2021 WL 1259737, at *18 (E.D. Cal. Apr. 6, 2021). Nevertheless, the 4 Court finds that the proposed amended definition does not alleviate the problem because it fails 5 to account for periods of time during which metal detectors may have been working or 6 operational, but were not used, e.g., when lanes were “flushed.” 7 Amazon additionally contends that the proposed classes cannot be certified because 8 employees were not required to bring anything that needed screening onto the floor. Amazon 9 argues that this fact matters because whether an associate had a choice in dictating the amount 10 of time spent in screening is highly relevant to, if not dispositive of, the control inquiry. The 11 Court does not find this argument wholly persuasive. In Frlekin, 8 Cal.5th 1038, the California 12 Supreme Court, at the request of the Ninth Circuit, decided the following question of California 13 law: “Is time spent on the employer’s premises waiting for, and undergoing, required exit 14 searches of packages, bags, or personal technology devices voluntarily brought to work purely 15 for personal convenience by employees compensable as ‘hours worked’ within the meaning of 16 Wage Order 7?” Id. at 1042. The California Supreme Court concluded that the answer to this 17 certified question was yes. Id. At issue was Apple’s policy, which required all employees to 18 undergo searches of their personal packages and bags by a manager or security team member, 19 having employees remove any type of item sold by Apple, and verification of their personal 20 technology with a personal technology log before leaving the premises for any reason, including 21 break, lunch and end of shift. Frlekin, 8 Cal.5th at 1044. 22 After the California Supreme Court answered the certified question, the Ninth Circuit 23 held that time spent by class members waiting for and undergoing exit searches pursuant to 24 Apple’s policy was compensable as “hours worked” under California law. Frlekin., 979 F.3d 25 639, 644 (9th Cir. 2020). The Ninth Circuit also indicated that disputed facts regarding whether 26 some class members did not bring bags or devices to work, were never required to participate in 27 checks, or worked in stores with remote break rooms where they stored their belongings 28 “pertain solely to individual remedies, not to the main legal question as to class-wide relief.” 1 Id.; see also Figueroa v. Delta Galil USA, Inc., 2021 WL 1232695, at *4 (N.D. Cal. Mar. 30, 2 2021) (same). The Court recognizes that the bag search policy in Frlekin involved more 3 extensive search procedures than those presented by Amazon’s use of metal detectors. 4 However, Frlekin suggests that the voluntary actions of employees to avoid extensive screening 5 is not dispositive of the main legal question. 6 Amazon further asserts that predominance cannot be met because the bulk of the 7 putative class are uninjured given that their exit screening experience consisted of walking 8 through a metal detector, as if through a doorway, with virtually no delay. “When considering if 9 predominance has been met, a key factual determination courts must make is whether the 10 plaintiffs’ statistical evidence sweeps in uninjured class members.” Olean, 993 F.3d at 791. As 11 the Ninth Circuit explained, the preponderance standard flows from the Supreme Court’s 12 emphasis that the evidence used to satisfy predominance be “sufficient to sustain a jury finding 13 as to [liability] if it were introduced in each [plaintiff's] individual action.” Id. at 787 (emphasis 14 and citation omitted). Plaintiffs therefore “must establish, predominantly with generalized 15 evidence, that all (or nearly all) members of the class” suffered injury as a result of Amazon’s 16 exit screening. Id. at 791. Although the Ninth Circuit has not established a threshold for how 17 great a percentage of uninjured class members would be enough to defeat predominance, “it 18 must be de minimis.” Id. at 792. Absent a bright-line or numerical rule, the Ninth Circuit held 19 that if the plaintiffs were “unable to show impact for more than one-fourth of the class members, 20 predominance has not been met.” Id. at 794. 21 Plaintiffs counter that Olean is inapplicable because it involved anti-trust claims and, 22 under Plaintiffs’ theories of liability, all of the putative class members have been injured if 23 liability is established. (Doc. 159 at 3.) Plaintiffs assert that questions of liability and 24 individualized damages issues based on variances in the amount of time taken for bag 25 inspections do not defeat predominance, citing Lao, 2019 WL 7312623, at *7. (Doc. 128 at 9- 26 10.) 27 Although Plaintiffs prefer otherwise, the Court finds Olean applicable to the class 28 certification analysis. In Olean, the Ninth Circuit made clear that the Court must find by a 1 preponderance of evidence that Plaintiffs have established predominance under Rule 23(b)(3). 2 This standard “best accords with the Supreme Court’s warning that class certification is ‘proper 3 only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) 4 have been satisfied.’” Olean, 993 F.3d at 785 (citation omitted). “[A] ‘rigorous analysis’ of 5 predominance requires ‘judging the persuasiveness of the evidence presented’ for and against 6 certification.” Id. “When considering if predominance has been met, a key factual 7 determination courts must make is whether the plaintiffs’ statistical evidence sweeps in 8 uninjured class members.” Id. at 791. 9 Plaintiffs also assert that Amazon’s arguments that class members whose screening 10 experience consisted of walking through a metal detector without stopping are uninjured is 11 wrong because it ignores the waiting time and the actual time going through the screening 12 process. Plaintiffs contend that waiting time and actual time are compensable under Frlekin, 13 979 F.3d at 644, which found that time spent by class members waiting for and undergoing exit 14 searches is compensable as “hours worked” under California law. However, Frlekin did not 15 foreclose consideration on remand of “whether time spent by class members undergoing a 16 search is de minimis.” Id. 17 Having conducted a rigorous analysis of the evidence, the Court finds that Plaintiffs 18 failed to establish predominantly, that all or nearly all members of the proposed class suffered 19 injury by passing through the metal detectors. As a practical matter, for those facilities without 20 operational metal detectors, there can be no evidence of injury. For those facilities with 21 operational metal detectors, Plaintiffs submitted declarations detailing their own individualized 22 experiences with exit screening but failed to provide the Court with representative or statistical 23 evidence demonstrating that all or nearly all putative class members were injured or suffered 24 any delay. Plaintiffs’ declarations are not sufficiently specific to support their theory of injury 25 resulting from any waiting time or actual time spent going through the screening process. 26 Instead, Plaintiffs’ statements are ambiguous, referring generally to “minutes” spent from clock 27 out through exit security. Plaintiffs Avalos, Gianini, Palma, Trevino and Ward each declared: “I 28 estimate that it took a few minutes from the time I clocked out until I [went] through the exit 1 security process depending on the lines at the metal detectors.” (Doc. 98-13, Avalos Decl. at ¶ 2 6; 98-14, Gianini Decl. at ¶ 6; 98-15, Palma Decl. at ¶ 6; 98-17, Trevino Decl. at ¶ 6; 98-18, 3 Ward Decl. at ¶ 6.) Plaintiff Quinteros’ declaration is equally unavailing because in alleging 4 that the exit security process “usually took a couple minutes to complete,” she lumps together 5 all time spent exiting the facility, including passing through the metal detectors and then 6 proceeding to the break room and lockers, picking up her items and then leaving the facility. 7 (Doc. 98-16, Quinteros Decl. at ¶ 5.) She also vaguely alleged that the security screening 8 process “generally took at least two to three minutes to complete.” (Id. at ¶ 6.) Plaintiffs’ 9 expert, Dr. Kriegler, also provides no representative or statistical evidence reflecting time spent 10 in exit security screening, envisioning only that a sampling of historical surveillance footage 11 could be used to measure how long it takes people to go through the mandatory security check 12 process. (Doc. 107-1, Kriegler Decl. at ¶¶ 53, 54.) He did not see surveillance footage of the 13 facilities. (Id. at ¶ 67.) 14 In contrast, Amazon’s expert, Dr. Ward, analyzed the time between clocking out and 15 exiting facilities and found that, over the period from July 12, 2013 to August 11, 2019, 89.5% 16 of all associates had a “minimum exit interval time . . . less than one minute.” (Doc. 123 at 14 17 and Table 5, Ex. A, Ward Expert Report.) Similarly, Amazon’s expert, Elizabeth Arnold, 18 following studies of a representative sample of the facilities, found that 81% of the employees 19 walked through the metal detectors with no delay,” and the “majority of time, passing through 20 the metal detectors takes seconds.” (Doc. 123, Ex. B, Arnold Decl. at ¶¶ 129, 133). 21 Courts have rejected certification of classes where individual issues predominated, such 22 as whether the amount of time allocated to the security checks was de minimis. See, e.g., 23 Hubbs, 2017 WL 2304754, at *9 (denying certification to proposed security inspection class 24 where individual issues, including whether the amount of time allocated to the bag checks was 25 de minimis, predominated); but see Bebber v. Dignity Health, 2021 WL 1187268, at *17 (E.D. 26 Cal. Mar. 30, 2021) (finding issue of whether violation was de minimis suitable for resolution 27 across the entire class); Figueroa, 2021 WL 1232695, at *4 (N.D. Cal. Mar. 30, 2021) (finding 28 that although the de minimis doctrine raised individual liability questions around class members 1 for whom bag inspection was a matter of seconds, the liability question did not preclude class 2 certification), Lao, 2019 WL 7312623, at *7 (“Rather ... it raises common questions, such as: (a) 3 under these circumstances, how much time would constitute a non-compensable ‘brief’ period 4 of time, and (b) whether it be administratively feasible for [the employer] to take additional 5 steps to compensate employees for visual inspections.”). 6 Class 2. Unpaid Wages Class (Controlled Meal Periods) 7 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 8 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who took a meal period and who were required to go 9 through a metal detector security process to leave the facility during such meal 10 period and were not paid for the time of such meal period. 11 Plaintiffs contend that during their meal periods, Amazon did not relinquish all control 12 over their activities because Amazon restrained employees from leaving the work premises 13 without passing through the mandatory security exit procedures. (Doc. 98-1 at 15.) Plaintiffs 14 rely on Bono Enterprises, Inc. v. Bradshaw, 32 Cal.App.4th 968, 968-72 (1995), to support their 15 position. In Bono, the court considered a policy where temporary workers were not given a 16 security clearance and were required to remain on the plant premises during their 30-minute 17 lunch period unless they made prior arrangements to reenter the plant after leaving for lunch. Id. 18 at 972. The court determined that “[w]hen an employer directs, commands or restrains an 19 employee from leaving the work place during his or her lunch hour and thus prevents the 20 employee from using the time effectively for his or her own purposes, that employee remains 21 subject to the employer’s control . . . [and] must be paid.” Id. at 975. 22 Bono is distinguishable from the instant case. According to the record, Amazon 23 associates clock out for meal breaks, cannot clock back in until 30 minutes have passed, and 24 have a three-minute grace period to clock back in. (Doc. 123, Ex. D, Carr Tr. 67:13–68:6; Ex. C, 25 Frauson Tr. 20:1–17.) Amazon’s policies also prohibit “off-the-clock” work by associates. 26 (Doc. 119-2, Ex. Y [Sealed].) 27 28 1 Additionally, there is no evidence that Amazon requires employees to remain within its 2 facilities during meal breaks or otherwise restrict whether those breaks can be taken outside of 3 the facility. Anecdotal evidence bears this out. (See, e.g., Doc. 120, Ex. 1., Aceves Decl. at ¶ 4 25 (“I normally eat my lunch outside . . . I can leave the facility during my meal break if I want 5 to . . . .); Ex. 5, Arana Decl. at ¶ 25 (“many times I will go to my car and go buy food nearby . . . 6 and come back. Sometimes I just go sit outside.”); Doc. 121, Ex. 35, Dominguez Decl. at ¶ 13 7 (“I pick up my lunch from the Break Room where I keep my backpack, heat it up in one of the 8 microwaves, and head outside to the smoking and seating area which right outside the 9 building.”); Ex. 36, Dunn Decl. at ¶ 25 (“For my meal break, I spend it outside at the tables . . . 10 .”); Ex. 41, Garay Decl. at ¶ 14 (“I usually grab a snack from the Main Breakroom and take it to 11 my car or hang out outside on the steps and socialize.”). Further, Amazon’s expert, Dr. Ward, 12 provided evidence that Amazon’s associates take fully compliant meal breaks after passing 13 through screening. (Doc. 123 at 430, Ex. A, Ward Expert Report.) Almost all employees exited 14 the facility at least once during lunch, and more than half of the employees in the data had 15 exited the facility for “a full 30 minutes” during at least one of their meal breaks. (Id.) 16 As shown above in Class 1, the Court finds that Plaintiffs have not met their burden of 17 demonstrating common questions predominate for controlled meal period claims premised on 18 exit security screening. 19 Class 3. Meal Period Violations for Controlled Meal Periods 20 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 21 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who worked a shift longer than six hours and who were 22 required to go through a metal detector security process to leave the facility during 23 such meal periods and were not paid a meal period premium for such shifts. 24 Plaintiffs allege Amazon is liable for meal period premiums for each shift for which a 25 meal period was required under Labor Code § 226.7, i.e., shifts over six hours, by restraining 26 class members from leaving the premises for meal periods without first going through the 27 mandatory security exit and limiting where they can take a meal break. For the reasons 28 1 discussed above, the Court finds that this class cannot be certified. Amazon authorizes 30 2 minutes for meal breaks (with a 3-minute grace period) and associates were not required to 3 remain on the premises during their meal period. Additionally, the Court has found that 4 proposed classes based on exit screening are not appropriate for class certification. 5 Class 4. Rest Periods Violations for Controlled Rest Periods 6 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 7 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who worked a shift longer than three and one-half hours 8 and were subject to a policy that leaving company premises without permission 9 during assigned work hours was a serious infraction that subjected them to termination or who were required to go through a metal detector security process 10 to leave the facility during the rest period and were not paid a rest period premium for all such shifts. 11 12 The parties do not dispute that under California law, an employer must authorize and 13 permit each non-exempt employee a 10-minute rest period for each four hours of work. 14 Plaintiffs contend, however, that Amazon’s use of mandatory security exit procedures prevented 15 employees from taking their rest periods off premises without going through mandatory security 16 exit procedures. Plaintiffs further contend that Amazon uniformly applied a policy and practice 17 of limiting where an employee can take a rest break and requiring employees to remain on 18 premises. Plaintiffs rely on Augustus v. ABM Security Services, Inc., 2 Cal.5th 257, 269 (2016), 19 as modified on denial of reh’g (March 15, 2017), for the proposition that during rest periods 20 employers must relieve employees of all duties and relinquish control over how employees 21 spend their time. (Doc. 98-1 at 18.) 22 Plaintiffs’ arguments are not persuasive. First, representative evidence from Amazon’s 23 expert, Elizabeth Arnold, demonstrated that the majority of time passing through the metal 24 detectors takes seconds. (Doc. 123, Ex. B, Arnold Decl. at ¶ 133.) Plaintiffs also do not allege 25 that this process took more than “a few minutes” from the time they clocked out until they went 26 through the exit security process, which included time to walk to the metal detectors. (Doc. 98- 27 13, Avalos Decl. at ¶ 6 (“a few minutes”); 98-14, Gianini Decl. at ¶ 6 (same); 98-15 Palma 28 Decl. at ¶ 6 (same); 98-16, Quinteros Decl. at ¶ ¶ 5 (“couple minutes;” “two to three minutes”); 1 98-17, Trevino Decl. at ¶ 6 (“a few minutes”); 98-18, Ward Decl. at ¶ 6 (“a few minutes”). This 2 general information, along with the undisputed fact that Amazon provided its employees 15- 3 minute rest breaks undercuts any inference that its exit security screening resulted in liability for 4 failing to provide fully compliant 10-minute rest periods. Figueroa, 2021 WL 1232695, at *6. 5 Second, Plaintiffs’ reliance on Augustus is misdirected. Augustus involved security 6 guards who were required to remain on call even during rest periods. 2 Cal.5th at 260. Unlike 7 the security guards in Augustus, and as noted, Amazon provides longer rests break than required 8 by California law, authorizing 15 minutes for rest breaks, (Doc. 123, Ex. D, Carr Tr. 67:7– 9.), 9 there is no evidence that Amazon employees were required to remain on call and, as discussed 10 below, rest breaks can be taken outside the facility. As Amazon argues, even if associates were 11 subject to brief delays while leaving the facility for breaks, individualized questions about 12 which employees did not in fact receive a full rest break or were genuinely limited in what they 13 could do for their breaks, predominate over any common questions. 14 The Court recognizes, however, that the proposed rest break class is alternatively 15 premised on a purported “policy that leaving company premises without permission during 16 assigned work hours was a serious infraction that subjected them to termination.” Although 17 Plaintiffs claim that Amazon has not disputed the existence of such a policy, with the exception 18 of Plaintiff Linda Quinteros, the declarations submitted by Plaintiffs do not indicate that 19 employees were required to ask permission to leave the premises during rest periods, only that 20 they had to go through exit security screening. 8 (See generally Doc. 98-13, Avalos Decl.; 98- 21 14, Gianini Decl.; 98-15, Palma Decl.; 98-17, Trevino Decl.; 98-18, Ward Decl.). 22 Plaintiffs have not presented evidence that employees were terminated or otherwise 23 subject to disciplinary action if they left to take their rest breaks outside the facility without first 24 seeking permission. In other words, Plaintiffs have not persuasively demonstrated that any such 25 policy was enforced. At oral argument, Plaintiffs represented that Amazon’s person most 26 27 8 Plaintiff Quinteros, who worked at Amazon’s Patterson facility (OAK3), claims she was not permitted to leave the facility during rest breaks. (Doc. 98-16, Quinteros Decl. at ¶ 13 (“we were not permitted to leave the 28 facility premises during rest breaks”). 1 knowledgeable, Michele Frauson, testified that Amazon’s policies were provided to employees 2 during the on-boarding process, including its policy that leaving the premises without 3 permission was a serious infraction, and that employees were required to comply with those 4 policies. A review of the relevant testimony does not support Plaintiffs’ underlying contention 5 that Amazon’s policy regarding leaving the premises without permission was, in fact, enforced 6 for rest breaks. Rather, Ms. Frauson testified only generally that Amazon expects its employees 7 to adhere to its policies. (Doc. 98-3 at 51, Exhibit 4 to Dion-Kindem Decl., Frauson Tr. 62:17- 8 19.) 9 Critically, Amazon has submitted evidence from putative class members who left the 10 facility during rest breaks with no mention of permission being required or that they were 11 terminated or disciplined for doing so. (See generally Doc. 123, Ex. GG.) Amazon also has 12 submitted declarations from putative class members from the Patterson facility (OAK3), where 13 Plaintiff Quinteros worked, who indicated that they could leave the facility during rest breaks 14 with no mention of permission. (See, e.g., Doc. 121, Jensen Decl. at ¶ 16 (“I can also go outside 15 . . . .); 122, Ex. 83, Valencia Decl. at ¶ 16 (“I could also leave the facility for my breaks and go 16 outside and/or to my car, if I wanted to.”); Ex. 91, Zamarron Decl. at ¶ 14 (“For my [rest] 17 breaks, I either go to the locker room at the entrance of OAK3 or my car, depending on if I 18 drove or not”). Amazon’s expert, Dr. Ward, found evidence that 51.3% of all employees exited 19 the facility outside of meal times for at least 10 minutes and, for those employees with 50 shifts 20 or more, 73.7% of those employees exited for at least 10 minutes at some time during their 21 employment over the period July 12, 2013 through August 11, 2019. Doc. 123 at 16-17, Ex. A, 22 Ward Expert Report). 23 In the absence of evidence that Amazon uniformly enforced any policy requiring 24 permission to leave the facility during rest breaks, there does not appear to be a question that 25 requires common resolution by the Court. “[T]he mere existence of a facially defective written 26 policy—without any evidence that it was implemented in an unlawful manner—does not 27 constitute significant proof ... that a class of employees was subject to an unlawful practice.” 28 Davidson v. O'Reilly Auto Enterprises, LLC, 968 F.3d 955, 968 (9th Cir. 2020) (internal 1 quotation marks and citation omitted). Any suggestion that requiring employees to pass through 2 metal detectors equates with requiring employees to obtain permission before leaving the 3 premises is not persuasive. 4 2. Rounding Classes (5 & 7) 5 Class 5. Improper Rounding Class 6 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 7 the period from July 12, 2014 and ending on the date of certification or as otherwise 8 determined by the Court who were subject to a rounding practice that resulted in them being paid less than they would have received had no such rounding practice 9 been utilized for such employees. 10 Class 7. Third Rest Period Class 11 All non-exempt employees employed by Amazon.com Services, Inc. or 12 Amazon.com, Inc. at any of Defendants’ facilities in California at any time during the period from July 12, 2014 and ending on the date of certification or as otherwise 13 determined by the Court who were scheduled to work a 10-hour shift and worked 14 more than 10 hours and who were not authorized or permitted to take a third uninterrupted, duty-free, and control-free 10-minute rest period and did not receive 15 one hour of pay at the class member’s regular rate of compensation for such day. 16 Plaintiffs contend that Amazon implemented a uniform policy and practice of 17 automatically rounding time-keeping entries, generally to conform to shift schedules, and that 18 such policy resulted in class members being paid less than all hours they worked (Class 5) and 19 denied class members who were scheduled to work 10-hour shifts, but in reality worked more 20 than 10 hours, a third rest period (Class 7). 21 California does not have a statute or regulation expressly addressing the permissibility of 22 using a rounding policy, but state courts have followed the federal regulatory standard. See See's 23 Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889, 903 (2012) (“The policies 24 underlying the federal regulation—recognizing that time rounding is a practical method for 25 calculating work time and can be a neutral calculation tool for providing full payment to 26 employees—apply equally to employee-protective policies embodied in California Labor law.”). 27 The relevant regulation states: 28 1 It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time 2 and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully 3 compensated for all the time they actually work. For enforcement purposes this 4 practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate 5 the employees properly for all the time they have actually worked. 6 29 C.F.R. § 785.48(b). “[A]n employer’s rounding practices comply with § 785.48(b) if the 7 employer applies a consistent rounding policy that, on average, favors neither overpayment nor 8 underpayment.” Alonzo v. Maximus, Inc., 832 F.Supp.2d 1122, 1126 (C.D. Cal. 2011) (citations 9 omitted). 10 Plaintiffs acknowledge that Amazon rounds time punches up and down, which allows 11 associates to both punch in late and punch out early. (Doc. 110-1 at 7). Plaintiffs essentially 12 contend, however, that this rounding policy underpays employees and, in certain instances, 13 deprives employees of a third rest break. Plaintiffs provide a declaration from Brian Kriegler, 14 Ph.D., opining that 88.0% of putative class members had fewer hours on the clock based on 15 rounded timestamps and were potentially underpaid due to rounding (60.1% of employee shifts, 16 71.4% of employee workweeks, and 88.0% of employees had fewer hours on the clock using 17 rounded timestamps) and that 28.6% of putative class members had a shift length over 10 hours 18 based on rounded timestamps, but was less than or equal to 10 hours based on rounded time 19 stamps. (Doc. 107-1 at 20-21, 23.) 20 Amazon does not dispute the existence of its rounding policy and instead points out that 21 Plaintiffs’ rounding classes (Classes 5 and 7) rely on an assumption that Amazon’s “uniform 22 rounding policy” resulted in employees being “routinely underpaid,” and deprived of a third rest 23 break when their shift exceeded 10 hours. (Doc. 119 at 21-22.) Citing See’s Candy, Amazon 24 argues that it is only liable if its policy consistently deprived employees of pay for “time they 25 have actually worked.” (Id.) Amazon urges that the existence of an unlawful rounding policy 26 requires “foundational evidence” that employees were actually working when they were clocked 27 in and were not being paid due to rounding, thus requiring individualized inquiries. (Id. at 22.) 28 Amazon provides evidence that some employees clocked in early, but spent that time engaging 1 in non-work activities, such as socializing, getting coffee, grabbing a snack or using the 2 restroom. Similarly, Amazon provides evidence that some employees engaged in a variety of 3 non-work activities at the end of their shifts, but before clocking out, such as socializing or 4 visiting the breakrooms. (Id. at 23.) 5 Amazon asserts that district courts within this Circuit have denied certification of classes 6 that require similar individualized inquiries. For example, In Pryor v. Aerotek Scientific, LLC, 7 278 F.R.D. 516 (C.D. Cal. 2011), the court concluded that individual questions predominated 8 where the evidence showed that associates would log in to their work computers upon arriving 9 at work, but then spend time eating or socializing before accepting calls. Id. at 535–36. The 10 Pryor court found there appeared to be too many variations to determine if an employee was 11 paid for fewer hours than actually worked, including whether they performed non-work 12 activities. Id. at 536. Likewise, in Shiferaw v. Sunrise Senior Living Management, Inc., 2014 13 WL 12585796, at *9–11 (C.D. Cal. June 11, 2014), the court denied certification of a rounding 14 class where variation existed as to whether employees were actually working when they had 15 clocked in before their shifts started or had clocked out after their shifts ended, where evidence 16 showed that some employees clocked in early, but spent that time talking to co-workers, 17 drinking coffee, talking on the phone, or waiting for their shifts to start. Id. at *9. 18 Plaintiffs contend that the Ninth Circuit in Sali v. Corona Regional Medical Center, 909 19 F.3d 996 (9th Cir. 2018), recently rejected an argument similar to Amazon’s that employees are 20 not working when engaging in personal activities. (Doc. 128 at 13.) In Sali, the Ninth Circuit 21 considered certification of a rounding-time class and found that the district court erred by 22 assuming that the only question to be decided was whether employees engaged in work 23 activities even if they were not required to do so. Id. at 1010. The Sali court identified that 24 under California law, time is compensable when an employee is working or under the control of 25 his or employer. Accordingly, employees were also actually working if they were subject to the 26 employer’s control even if they were not engaging in work activities. In so identifying, the Sali 27 court determined that the district court failed to consider whether the employees could establish 28 on a classwide basis that they were subject to the employer’s control, such as if they were 1 required to remain on premises during the grace period, even if they were not always engaged in 2 work-related activities during that time. Id. The Ninth Circuit indicated that the “employer 3 control” question required “an employer-focused inquiry into whether [the employer] had a 4 policy or practice that restricted [employees] in a manner that amounted to employer control 5 during the period between their clock-in and clock-out times and their rounded shift-start and 6 shift-end times” and that determination of this question did not depend on individualized factual 7 questions. Id. at 1010-11. 8 As to the question of whether employees were actually working, the Court finds that 9 Amazon has demonstrated that individualized inquiries would be required to determine whether 10 its employees were actually working during those times when they clocked-in early or clocked- 11 out late. See Shiferaw, 2014 WL 12585796, at *9. Plaintiffs attempt to distinguish Shiferaw by 12 asserting that the court found common questions as to rounding. (Doc. 128 at 15.) While 13 Plaintiffs are correct, the Shiferaw court ultimately found that individualized inquiries 14 predominated in resolving the claims of the rounding class and denied certification on that basis. 15 Shiferaw, 2014 WL 12585796, at *9. Moreover, in this case, Plaintiffs have not demonstrated 16 that the putative class members were working or expected to be working during the time they 17 were clocked in before their shifts began. Indeed, Plaintiffs’ own declarations do not provide 18 affirmative evidence that they were working after clocking-in, but before shift start. (See Doc. 19 98-13, Avalos Decl. at ¶ 4; 98-14, Gianini Decl. at ¶ 3; 98-15, Palma Decl. at ¶ 3; 98-16, 20 Quinteros Decl. at ¶ 4 (indicating that after clocking-in, it would then take “at least five more 21 minutes to walk to my work location and prepare for the shift start-up meeting at the scheduled 22 shift start time”); 98-17, Trevino Decl. at ¶ 3; 98-18, Ward Decl. at ¶ 8 (“In order to be on time 23 for my shift start up meeting, or stand-up meeting, I would have to arrive at the facility early so 24 I could go through the above process [swiping badge to pass through the turnstile to get to the 25 production floor in the facility] and clock in and then walk to my assigned work location. 26 Amazon would not record this at time worked, as my time punches for before my scheduled 27 shift time would be rounded forward to reflect the scheduled shift start time.”). 28 1 Further, record evidence undermines assertions that employees who clocked-in early 2 were, in fact, working as associates testified that they could not begin work until after the stand- 3 up meeting at shift start because the conveyor belts only begin moving after the meeting, (Doc. 4 121. Ex. 37, Flores Decl. ¶ 12 (“I do not work before the stand-up starts and we cannot do any 5 because the conveyer belts are not functioning.”), or they do not receive their assignment for the 6 day, or receive their scanner, until the stand-up, (Doc.122, Ex. 84, Vazquez Decl. ¶ 6 (“There is 7 no work for me to do until after the stand-up, because my work assignment is posted on a board 8 in the area where the stand-up meeting is held.”); Ex. 81, Tilley Decl. ¶ 6 (“There is no work for 9 me to do until after the stand-up, because at the beginning of my shift, I am supposed to go to 10 stand-up first . . . to get my scanner.”). The time entries proffered by Plaintiffs are not sufficient 11 on their own to demonstrate that the proposed class members must be paid between timestamps. 12 Shiferaw 2014 WL 12585796, at *10 (finding “time entries by themselves do not demonstrate 13 that proposed subclass members must be paid for the time spent between the time punch and the 14 employee’s scheduled start time”). 15 As to the “employer control” question, this case is distinct from the example of control 16 cited in Sali, i.e., employees required to remain on the premises during the grace period. 909 17 F.3d at 1010. Here, there is no evidence that employees could not leave during the grace period 18 or were otherwise prevented from using the grace period to clock-in late or clock-out early and 19 leave the premises. Indeed, Amazon has presented evidence that employees used the five- 20 minute rounded grace period to clock in late without consequence. (See, e.g., Doc. 122, Ex. 73, 21 Rocha Decl. ¶ 8 (clocking in after shift start “does not affect my pay”); Ex. 92, Zarate Decl. ¶ 6 22 (“Even though I typically clock in after my 6:30 a.m. shift start time, it is not a big deal. 23 Nobody cares.”); Doc.120, Ex. 18, Castelan Decl. ¶ 9 (despite arriving early, “sit in my car 24 until” after shift start)) or to leave early (See Doc. 120, Ex. 4, Angeles Decl. ¶ 14 (“My shift 25 officially ends at 4:30 a.m. I almost always leave early.” “Because of the 5 minute grace period, 26 I can clock out at 4:25 a.m. and still get credit to working to 4:30 a.m.”). In short, there is no 27 indication that Amazon uniformly exercises control over employees during the grace periods or 28 1 that the rounding policy had a uniform impact on employees. Accordingly, determination of the 2 employer-control question is not readily capable of class wide resolution. 3 For these reasons, the Court finds that Plaintiffs have not met their burden of 4 demonstrating common questions predominate for claims premised on its rounding claims. 5 3. Meal Break Waiver Class 6 Class 6. Invalid Second Meal Period Waiver Class 7 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time during 8 the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who signed any meal period waiver in the forms attached 9 as Exhibit 12 to the Declaration of Peter R. Dion-Kindem in Support of Motion for 10 Class Certification and worked more than 10 hours in a day, did not receive a second 30 minute meal period, and did not receive one hour of pay at the class 11 member’s regular rate of compensation for such day. 12 Plaintiffs seek to certify the subclass of employees who executed specific meal break 13 waiver forms and who worked more than 10 hours a day and were not provided with a second 14 30-minute meal period. (Doc. 98-1 at 20.) The specific meal break waiver forms at issue are 15 attached as Exhibit 12 to the declaration of Peter Dion-Kindem in support of the class 16 certification motion, one signed in 2017 and one signed in 2018. (Doc. 98-3, Ex. 12.) Plaintiffs 17 contend that these meal break waiver forms are facially invalid and unenforceable because, in 18 addition to being ambiguous and self-contradictory, they fail to accurately disclose employees’ 19 meal break rights and also purport to waive rights which cannot be waived. (Doc. 128 at 15.) 20 Plaintiffs assert that whether such waivers are legally effective is a legal issue that the Court can 21 resolve on a class-wide basis simply by examining the waivers and applying applicable meal 22 period waiver requirements. 23 Amazon counters that whether a waiver is “ambiguous” requires an individualized 24 assessment of the waiver and each associate’s interpretation and understanding of it, citing 25 California Labor Code § 512. Because California law requires only “mutual consent”—not a 26 writing—to waive a meal period, Amazon asserts that determining whether consent was given 27 would necessitate individualized, associate-by-associate and shift-by-shift inquiries. Amazon 28 1 further asserts that determining the validity of the waiver is only the first step, and Plaintiffs 2 “must also show that they can prove on a classwide basis who was entitled to, but did not 3 receive, a second meal break—which Plaintiffs do not even attempt to do.” (Doc. 119 at 26.) 4 Amazon therefore concludes that these individualized issues preclude certification. 5 The issue of whether these specific meal break waiver forms are facially valid presents a 6 common question capable of class-wide resolution. See Garcia v. Wal-Mart Stores, Inc., 2018 7 WL 4959824, at *2 (C.D. Cal. Sept. 28, 2018) (granting certification of class composed of 8 employees who worked a 10-hour shift but were not given a second meal period based on an 9 invalid meal waiver form; “overarching question of law is whether the meal waiver form was 10 valid); Saechao v. Landry’s Inc, 2016 WL 1029479, at *4 (N.D. Cal Mar. 15, 2016) (rejecting 11 defendant’s argument that meal break waiver theory relied on individual questions regarding 12 each employee’s understanding of the effect of the meal-break waiver where theory turns on 13 “the facial validity of the meal-break waiver form – a question of law capable of resolution on a 14 class-wide basis.”); cf. Clark v. QG Printing II, LLC, , 2020 WL 5604290, at *16 (E.D. Cal. 15 Sept. 18, 2020) (“it appears that determinations as to the validity of QG Printing's prospective 16 waivers and QG Printing's failure to provide premium pay automatically will drive resolution of 17 most—if not all—claims for the Meal Break Waiver Subclass and that any individualized 18 inquiries would pertain primarily to damages (based on the number of meal breaks missed based 19 on invalid waivers and the amount of premium payment improperly withheld). This limited 20 question of facial validity does not depend upon an individualized assessment of each 21 employee’s understanding of the waiver form. 22 4. Wage Statement Class 23 Class 8. Direct Violation of Section 226(a)(2) Wage Statement Class 24 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. in California at any time during the period from July 12, 2016 25 and ending on the date of certification or as otherwise determined by the Court who did not receive an itemized statement in writing accurately showing the total hours 26 worked by the employee where the wage statements reflect a line item for regular 27 hours worked and at least one other line item for other types of hours worked other than regular overtime or double time, such as shift differential hours worked. 28 1 Plaintiffs allege that Amazon violated this section by failing to provide Plaintiffs and 2 other class members with wage statements that accurately listed the total hours worked. (Doc. 3 98-1 at 22.) Plaintiff Trevino provides an exemplar: his 4/21/2017 wage statement shows 70 4 regular hours, 11.53 overtime hours, and 2.6 double time hours. It also reflects that every 5 recorded hour of work qualified for a shift differential. Plaintiffs assert that although Plaintiff 6 Trevino worked a total of 84.13 hours during this pay period, when the hours listed are added 7 together, they add up to 168.26 hours. (Doc. 98-17 at 9, Trevino Decl., Ex. 2.) Plaintiffs argue 8 that the wage statement effectively “double-counted” the total hours worked when it reflected 9 shift pay hours and shift pay overtime hours in addition to regular and overtime hours. (Doc. 10 98-1 at 23.) Plaintiffs assert that whether Amazon’s wage statements comply with Section 11 226(a)(2) requirements is a legal issue that does not involve individualized issues but can be 12 resolved as a matter of law through an examination of the wage statements. 13 Amazon counters that Plaintiffs cannot establish commonality and predominance on this 14 claim. Amazon asserts that Plaintiffs’ bid to certify this class rests on a false presumption that 15 every class member suffered an injury because some wage statements did not include a “total 16 hours worked” line item. According to Amazon, many associates received wage statements that 17 explicitly listed total hours worked and, as of January 1, 2019, all Amazon wage statements 18 displayed a total hours worked line. (Doc. 119 at 28; Doc. 119-3, Osborne Decl. at ¶ 5.) For 19 those wage statements that did not explicitly list total hours worked, Amazon argues that Labor 20 Code section 226(e)(2)(B) presumes injury only if the employee cannot “promptly and easily” 21 determine from the wage statement the total hours worked. Amazon avers that associates could 22 use simple arithmetic to determine the total hours worked and thus injury cannot be established. 23 (Doc. 119 at 27.) Amazon also claims that Plaintiffs must prove that all class members were 24 actually injured for purposes of Article III standing. 25 California Labor Code section 226(a) requires an employer to provide his or her 26 employee with an accurate itemized statement in writing showing total hours worked by the 27 employee. Cal. Labor Code § 226(a)(2). An employee who is injured as a result of the 28 employer’s “knowing and intentional failure” to comply with these requirements may recover 1 civil penalties. Id. § 226(e). An employee is deemed to suffer injury if the employer fails to 2 provide the required information and the employee cannot “promptly and easily determine” the 3 total amount of hours worked. Id. § 226(e)(2)(B)(i). 4 Plaintiffs’ putative class premised on the failure to provide wage statements that 5 accurately identified the total hours worked during the pay period in violation of California 6 Labor Code section 226 implicates common questions of law and fact. See, e.g., Flores v. Dart 7 Container Corp., 2021 WL 107239, at *3, *6 (E.D. Cal. Jan. 12, 2021) (finding class shared 8 common legal questions, including whether defendants’ policy of failing to provide wage 9 statements that accurately identified the total hours worked during the pay period violated 10 California Labor Code section 226 and this question predominated over questions affecting only 11 individual class members); Parker v. Cherne Contracting Corp., 2020 WL 6822913, at *11 12 (N.D. Cal. Nov. 20, 2020) (concluding that for purposes of class certification, whether wage 13 statements at issue were legally deficient is a common question of law and fact that 14 predominated over individual issues). Amazon’s argument that the wage statements comply 15 with section 226 is a merits question. The Court finds that the question of whether the wage 16 statements at issue, such as those provided in the exemplars from Plaintiff Trevino, complied 17 with section 226 can be determined on a classwide basis. Arroyo v. Int'l Paper Co., 2019 WL 18 1508457, at *5 (N.D. Cal. Apr. 4, 2019) (finding employer’s argument that injury could not be 19 established from wage statement because simple arithmetic allowed the employee to ascertain 20 all of the required information was a merits question, not a class certification determination; 21 concluding plaintiff had presented a claim which was dependent on a common contention with 22 respect to wage statements). It appears that the alleged inaccuracies described by Plaintiff 23 Trevino are limited to a certain subset of wage statements and, at a minimum, do not include 24 wage statements issued beginning January 1, 2019, which displayed a total hours worked line. 25 The class definition will therefore need to be modified to capture wage statements listing shift 26 pay differentials, but not listing a separate line item for “total hours worked,” and also limiting 27 the class period through December 31, 2018. 28 1 The Court does not find persuasive Amazon’s assertions that the class should not be 2 certified because any harm resulting from the alleged wage statement violations would turn on 3 the individual circumstances of each class member and that there is no feasible and manageable 4 mechanism for proving Article III standing for all class members at trial. In Magadia v. Wal- 5 Mart Associates, Inc., ---F.3d---, 2021 WL 2176584, at *8 (9th Cir. May 28, 2021), the Ninth 6 Circuit rejected an identical argument that class members lacked Article III standing for § 7 226(a) claims. As the Ninth Circuit explained, courts use a two-part inquiry to assess whether a 8 statutory violation causes a concrete injury. Magadia, 2021 WL 2176584, at *8. Courts first 9 consider “whether the statutory provisions at issue were established to protect . . . concrete 10 interests (as opposed to purely procedural rights).” Magadia, 2021 WL 2176584, at *8 (quoting 11 Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017)). If so, then courts assesses 12 “whether the specific procedural violations alleged in this case actually harm, or present a 13 material risk of harm to, such interests.” Id. 14 Applying the two-part inquiry, the Ninth Circuit in Magadia found that “§ 226(a) 15 protects employees’ concrete interest in receiving accurate information about their wages in 16 their pay statements.” Id. Further, the lack of the required information in the wage statement 17 “runs the risk of leaving [plaintiffs] and other employees unable to determine whether” they 18 were underpaid. Id. at *9. The Ninth Circuit found that even if an employer “pays its 19 employees all wages owed, those employees suffer a real risk of harm if they cannot access the 20 information required by § 226(a).” Id. Therefore, the Magadia court concluded that plaintiff 21 had standing to bring his claims under Labor Code § 226(a) and that class members who could 22 establish § 226(a) injuries had standing to collect damages. Id. 23 5. Derivative Classes 24 Class 9. Derivative Wage Statement Class 25 All members of any of Classes 1 through 7 who, during the period from July 12, 2016 and ending on the date of certification or as otherwise determined by the 26 Court, were not provided with accurate itemized wage statements with all the information required by Labor Code Section 226(a)(1), (2), (5) and (9). 27 28 /// 1 Class 10. Section 203 Subclass 2 All members of any of Classes 1 through 7 who, during the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the 3 Court, were either voluntarily or involuntarily separated from their employment and did not timely receive all wages owing pursuant to Labor Code Section 201 or 4 202. 5 Class 11. UCL Class 6 All non-exempt employees employed by Amazon.com Services, Inc. or 7 Amazon.com, Inc. at any of Defendants’ facilities in California at any time during the period from July 12, 2013 and ending on the date of certification or as otherwise 8 determined by the Court who are owed restitution as a result of Defendants’ 9 business acts and practices that are found to be unlawful, deceptive, and/or unfair. 10 For purposes of derivative Classes 9 and 10, the Court has found classwide certification 11 appropriate only for Class 6 (Meal Period Waiver). For purposes of derivative Class 11, the Court 12 has found classwide certification appropriate only for Class 6 (Meal Period Waiver) and, as 13 modified, Class 8 (Wage Statements). 14 C. Superiority 15 As stated above, the second part of certification under Rule 23(b)(3) is superiority. The 16 superiority requirement tests whether “classwide litigation of common issues will reduce 17 litigation costs and promote greater efficiency.” Valentino v. Carter-Wallace, Inc., 97 F.3d 18 1227, 1234 (9th Cir. 1996). “If each class member has to litigate numerous and substantial 19 separate issues to establish his or her right to recover individually a class action is not superior.” 20 Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1192 (9th Cir. 2001). 21 Plaintiffs argue that a class action is the superior method of adjudication because their 22 claims are based on common policies and practices and there is a strong likelihood that putative 23 class members would not bring individual actions. Plaintiffs further argue that calculating 24 damages is easily manageable, relying on the Declaration of Dr. Brian Kriegler. For Class 6 25 (Meal Period Waivers), the number of second meal periods to which class members were 26 entitled can be established by Amazon’s time records. For Class 8 (Wage Statements), statutory 27 penalties recoverable under Section 226(e) can be calculated using the class members wage 28 statements and Amazon’s payroll records. For Class 9 (Derivative Wage Statement), the 1 violations and amount of statutory penalties can be calculated using Amazon’s payroll records. 2 For Class 10 (Termination Pay Claims), damages can be calculable from Amazon’s payroll 3 records. For Class 11(UCL Claims), the UCL remedy can be calculated using the same 4 methodology used in calculating the damages recoverable for substantive wage claims. (Doc. 5 110-1). 6 Amazon counters that Plaintiffs have not presented a manageable trial plan, primarily 7 taking issue with Dr. Kriegler’s expert report and the purported failure to address how second 8 meal break waiver claims will be tried. Amazon also finds it troubling that Plaintiffs failed to 9 account for Amazon’s individual defenses, including whether various iterations of the second 10 meal period waivers were in fact ambiguous and unintelligible and whether an employee was 11 able to determine the total hours worked on his wage statement using simple arithmetic. 12 Having considered Amazon’s arguments, the Court finds that classwide litigation will 13 promote efficiency by addressing potential defenses to liability for the two non-derivative 14 classes--Class 6 (Meal Period Waiver) and Class 8 (Wage Statement). Amazon has asserted 15 defenses to the merits of these claims, arguing that the meal period waivers are valid and that 16 associates could use simple arithmetic to determine the total hours worked on their wage 17 statements. Resolution of such issues may streamline the litigation and potentially resolve the 18 entirety of the class action, including the derivative claims. 19 V. MOTION TO EXCLUDE PLAINTIFFS’ EXPERT DR. BRIAN KRIEGLER 20 Amazon moves to exclude the testimony and opinions of Plaintiffs’ expert, Dr. Brian 21 Kriegler, submitted in support of Plaintiffs’ motion for class certification. (Doc. 125.) For the 22 majority of proposed classes, the Court will recommend denial of class certification. In 23 reaching that recommendation, the Court did not substantively rely on Dr. Kriegler’s testimony 24 to assess whether Plaintiffs’ claims were susceptible to classwide resolution or whether 25 individual questions predominated. Therefore, it is unnecessary to address substantial portions 26 of Amazon’s motion seeking to exclude Dr. Kriegler’s report, particularly with respect to 27 Classes 1 through 5 and Class 7. 28 1 As to the remaining classes, Classes 6 (Meal Period Waiver) and 8 (Wage Statement) 2 (and the derivative Classes 9 through 11), it also was unnecessary for the Court to rely on Dr. 3 Kriegler’s report for a determination as to whether these classes are susceptible to class wide 4 resolution. Class 6 is premised on the facial validity of specific meal break waiver forms, a 5 legal question that does not require expert testimony. Class 8 is likewise premised on a legal 6 question susceptible to resolution without expert testimony; that is, whether certain wage 7 statements violated Labor Code § 226(a). Accordingly, the Court will recommend that 8 Amazon’s motion to exclude Plaintiffs’ expert be DENIED as moot. 9 IV. CONCLUSION AND RECOMMENDATION 10 Based on the foregoing, IT IS HEREBY RECOMMENDED as follows: 11 1. Plaintiffs’ Motion for Class Certification is GRANTED IN PART and DENIED IN 12 PART as follows: 13 a. Plaintiffs’ motion for class certification be DENIED as to the following 14 classes: Class 1 Unpaid Wages Class (Hours Worked Claim Based on Control of Employees 15 through Mandatory Exit Security Procedures); Class 2 Unpaid Wages Class (Controlled Meal 16 Periods); Class 3 Meal Period Violations for Controlled Meal Periods; Class 4 Rest Periods 17 Violations for Controlled Rest Periods; Class 5 Improper Rounding Class; and Class 7 (Third 18 Rest Period Class); 19 b. Plaintiffs’ motion for class certification be GRANTED as to the 20 following classes: 21 Class 6 (Invalid Second Meal Period Waiver Class) defined as: 22 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time 23 during the period from July 12, 2014 and ending on the date of certification or as otherwise determined by the Court who signed any meal period waiver 24 in the forms attached as Exhibit 12 to the Declaration of Peter R. Dion- 25 Kindem in Support of Motion for Class Certification and worked more than 10 hours in a day, did not receive a second 30 minute meal period, and did 26 not receive one hour of pay at the class member’s regular rate of compensation for such day. 27 28 Class 8. Direct Violation of Section 226(a)(2) Wage Statement Class defined as: 1 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. in California at any time during the period from July 12, 2 2016 and December 31, 2018 who did not receive an itemized statement in writing accurately showing the total hours worked by the employee where 3 the wage statements reflect a line item for regular hours worked and at least 4 one other line item for other types of hours worked other than regular overtime or double time, such as shift differential hours worked. 5 Class 9. Derivative Wage Statement Class defined as: 6 All members of Class 6 who, during the period from July 12, 2016 and 7 ending on the date of certification or as otherwise determined by the Court, 8 were not provided with accurate itemized wage statements with all the information required by Labor Code Section 226(a)(1), (2), (5) and (9). 9 Class 10. Section 203 Subclass defined as: 10 All members of Class 6 who, during the period from July 12, 2014 and 11 ending on the date of certification or as otherwise determined by the Court, 12 were either voluntarily or involuntarily separated from their employment and did not timely receive all wages owing pursuant to Labor Code Section 13 201 or 202. 14 Class 11. UCL Class defined as: 15 All non-exempt employees employed by Amazon.com Services, Inc. or Amazon.com, Inc. at any of Defendants’ facilities in California at any time 16 during the period from July 12, 2013 and ending on the date of certification 17 or as otherwise determined by the Court who are owed restitution as a result of Defendants’ business acts and practices that are found to be unlawful, 18 deceptive, and/or unfair. 19 2. Defendants’ Motion to Exclude Plaintiffs’ Expert Dr. Brian Kriegler be DENIED 20 as moot. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 23 (14) days after being served with these findings and recommendations, the parties may file 24 written objections with the Court. Such a document should be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 26 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 27 28 1 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: June 7, 2021 /s/ Barbara A. McAuliffe 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28