Although standards for class actions have become more stringent, some circumstances still warrant class treatment. An example is a recent decision by the U.S. 9th Circuit Court of Appeals— which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington--permitting a class of security guards to challenge their employer's on-duty meal period policy.

Guards required to eat lunch on-duty

U.S. Security Associates, Inc. (USSA), supplies security guards to hotels, hospitals, warehouses, construction sites, and other industrial locations in California. The guards perform a variety of duties, depending on their specific assignment. Those duties include patrolling property, checking vehicles, making reports of damage, and helping control unruly situations. Typically, only a single USSA guard is on duty at a site at any given time.

Because the guards work alone, USSA requires them all to sign a "voluntary" agreement acknowledging that because of the nature of their duties, they won't be able to take an uninterrupted meal period, they will be paid for their on-duty meal period at their regular pay rate, and they may revoke their agreement at any time with written notice.

The agreement also expressly waives the right to an off-duty meal period after five hours of work, which California regulations otherwise would mandate. USSA wouldn't hire anyone who didn't sign the agreement.

California law generally requires employers to provide workers with a meal period of at least 30 minutes after five hours of work. Workers are to be relieved of all duties during the meal period. The regulations recognize a narrow exception to the requirement when the nature of the work prevents complete relief from duty and the employee has agreed in writing to a paid on-duty meal period and has a right to revoke the agreement.

Muhammed Abdullah, a former USSA guard, sued on behalf of himself and a class of coworkers, claiming the company had violated California law by requiring them to work through mandated meal periods. Under the circumstances, the lawsuit asserted, USSA should have paid premium pay for the on-duty meal periods. The trial court gave the green light for this claim to proceed as a class action. USSA appealed.

Violation of state law?

In its appeal, USSA urged that no class should be certified because evaluating the claims would require an individualized examination of each guard's particular circumstances and work duties. The 9th Circuit, however, framed the issue differently: Were there one or more common questions that applied to the entire class so that there would be common answers that would drive the legal outcome?

According to the trial court, class treatment could address the common question of whether USSA's practice of assigning a single guard to a worksite fit within the "nature of the work" exception permitting on-duty meal periods under California law.

Guidance from the California enforcement agency emphasized that the exception was narrow and generally would be allowed only if the nature of a worker's duties prevented an off-duty meal break or if the worker was the sole employee of the employer and thus couldn't be relieved for a break. If others could cover the duties during a break, an off-duty meal period should be provided.

Looking to a recent California case that involved the same issue, the 9th Circuit noted that an employer could be in violation of meal break requirements if it had a standard policy under which all guards — regardless of their individual assignments and duties — were in effect made to waive their right to an off-duty meal period.

According to the 9th Circuit, USSA had exactly the same sort of uniform approach, requiring all guards to sign the meal period agreement based on its practice of assigning just one guard at a time to any particular location.

Could USSA claim an on-duty meal period exception for all its guards? Nothing about the nature of the guards' work prevented them from being relieved from duty to eat lunch. Instead, the lack of relief was due to USSA's single-guard staffing policy. Under the circumstances, there was a common question applicable to the class as a whole about whether the policy fit within or violated California meal period regulations.

The 9th Circuit approved the trial court's certification of the meal period class claims. Abdullah v. U.S. Security Associates, Inc., Case No. 11-55653 (2013).

Lesson: Meal period regulations interpreted liberally

Break and meal period requirements imposed by state law are for the health and safety of workers, so courts won't hesitate to enforce them. It's important to understand the state laws applicable to your workers. If you think — as the employer did in this case — that an exception is available, be certain you have the facts to justify your position.

Don't count on workers' "voluntary" waiver of rights unless clearly permitted and warranted by the circumstances. A court may not recognize the waiver, and class claims, like those in this case, can quickly become very expensive to defend.

This article was edited by Anthony L. Hall of Holland & Hart LLP.