Muhammed Abdullah v. U.S. Security Associates, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MUHAMMED ABDULLAH, as an No. 11-55653

individual and on behalf of all others

similarly situated, D.C. No.

Plaintiff-Appellee, 2:09-cv-09554-

GHK-E

v.

U.S. SECURITY ASSOCIATES, INC., a OPINION

corporation,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

George H. King, Chief District Judge, Presiding

Argued and Submitted

March 7, 2013—Pasadena, California

Filed September 27, 2013

Before: Richard A. Paez and Paul J. Watford, Circuit

Judges, and Leslie E. Kobayashi, District Judge.*

Opinion by Judge Paez

*

The Honorable Leslie E. Kobayashi, District Judge for the U.S. District

Court for the District of Hawaii, sitting by designation.

2 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

SUMMARY**

Class Certification

The panel affirmed the district court’s order under Fed. R.

Civ. P. 23 certifying a class of former and current employees

of U.S. Security Associates, Inc., who allege that the

company committed numerous violations of California labor

law.

The panel held that the district court did not abuse its

discretion by certifying a meal break sub-class, defined as all

past and present employees who worked more than six hours

and were not provided a meal break and who were not

compensated for the meal break. The panel held that under

California law the plaintiffs’ claims will yield a common

answer that is “apt to drive the resolution of the litigation,” as

required by Fed. R. Civ. P. 23(a)(2). The panel also held that

common issues of law or fact would predominate, and

plaintiffs’ claims “will prevail or fail in unison,” as required

by Fed. R. Civ. P. 23(b)(3).

COUNSEL

Robert J. Stumpf, Jr. (argued), San Francisco, California; Otis

McGee, Jr., Ross A. Boughton, Morgan P. Forsey, and

Lauren D. Thibodeaux, Sheppard, Mullin, Richter &

Hampton LLP, Los Angeles, California, for Defendant-

Appellant.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 3

Kenneth H. Yoon (argued), Los Angeles, California; Peter M.

Hart and Amber S. Healy, Los Angeles, California, for

Plaintiff-Appellee.

OPINION

PAEZ, Circuit Judge:

The district court certified a class of former and current

employees of U.S. Security Associates, Inc. (“USSA”), who

allege that USSA committed numerous violations of

California labor law. USSA filed a petition to appeal the

district court’s certification order, which we granted. See

Fed. R. Civ. P. 23(f). On appeal, USSA argues that the court

erred in certifying the meal break sub-class, because the

plaintiffs failed to establish “questions of law or fact common

to the class” that “predominate” over questions affecting only

individual members. Fed. R. Civ. P. 23(a)(2), (b)(3). We

hold that the district court did not abuse its discretion by

certifying the meal break sub-class. Accordingly, we affirm.

I. BACKGROUND

A.

Plaintiff Muhammed Abdullah is a former employee of

USSA, a private security guard company.1 USSA provides

guards at over 700 locations in California, including hotels,

1

In addition to Abdullah, the second amended complaint names three

additional plaintiffs: Melissa Robinson, Christina Aguilar, and William

Kimbrough. All four were employees of USSA for some period of time

between 2007 and 2009.

4 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

hospitals, warehouses, and construction sites, among other

locations. In addition to standing guard at such locations,

USSA’s employees may perform a range of other duties, such

as inspecting vehicles, patrolling properties, reacting to

patient emergencies, clearing off railroad tracks, and

recording damage to vehicles, among many other tasks. A

large majority of USSA’s employees in California work at

“single post” locations, meaning that no other guards are on

duty at the same time.2

As a condition of employment, all of USSA’s employees

are required to sign “on-duty meal period agreements.” The

record contains two versions of such agreements. The first,

which was used prior to 2007, provides:

Due to the nature of the work I perform as a

Security Guard, and due to the nature of the

services provided by U.S. Security Associates,

Inc., I understand that my work prevents me

from being relieved of all duty during my

meal period. I am voluntarily agreeing to

have my daily meal period “on duty.” I

understand that I will be paid at my regular

rate of pay for my on duty meal period. I

understand that, if I elect to revoke this

agreement, I may do so at any time, provided

my revocation is in writing.

2

USSA’s “person most knowledgeable,” Leo J. Flury (“Flury”), initially

testified at his deposition that 99.9% of employees work at single guard

posts. He later changed his answer to say that “a large majority” of

employees work at such posts.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 5

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

Due to the nature of the work I perform as a

Security Guard, and due to the nature of the

services provided by U.S. Security Associates,

Inc., I understand that I may be prevented

from being relieved of duty during my meal

period. On this basis, I voluntarily agree to

have an “on-duty” meal period that shall be

counted as time worked and compensated by

U.S. Security Associates, Inc.

After five (5) hours worked, the following waiver

becomes relevant:

Pursuant to paragraph 13 of Wage Order No.

4-2001 of the California Industrial Welfare

Commission, Employee and Employer, as

evidenced by their respective signatures

below, hereby mutually agree to waive the

right to an off-duty meal period for any hours

worked in excess of five (5) total hours in a

workday.

I understand that I may revoke this agreement

at anytime in writing, and such revocation

shall be presented to my Supervisor or

Operations Manager at the beginning of the

shift on which I first desire to revoke the

agreement. I am voluntarily signing this

agreement.

Flury testified that if an employee refuses to sign the “on-

duty meal period agreement,” he or she “won’t work for us.”

6 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

He further testified that one of the “requirements” of the job,

as evidenced by the meal-period “waiver,” was for USSA

employees to eat meals on the job.

B.

The plaintiffs sought to maintain a class action on behalf

of themselves and all others similarly situated, alleging that

USSA committed numerous violations of California labor

laws, including, inter alia, requiring them to work through

their meal periods. Of note here, they allege that USSA has

a “policy of requiring employees to work through their

legally mandated meal periods,” and is therefore liable for

“paying premium compensation for missed meal periods . . .

pursuant to California Labor Code § 226.7 and the applicable

[Industrial Welfare Commission] Wage Order.”3

The district court certified the class and seven sub-classes,

pursuant to Rule 23(b)(3). One of the sub-classes is the meal

break sub-class, which is defined as:

A Subclass of all of Defendant’s past and

present California Security Guard/Officer

employees who worked more than six hours

and were not provided a checked-out meal

break in any work shift from July 1, 2007

through the present, and who were not

compensated for such on-duty meal break(s)

pursuant to California Labor Code § 226.7(b).

3

The plaintiffs filed their initial complaint in the California Superior

Court, and USSA removed the case to federal court pursuant to the Class

Action Fairness Act. See 28 U.S.C. § 1332(d).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 7

The district court determined that certifying this sub-class

was appropriate, “[g]iven [USSA’s] uniform policy of

requiring the putative subclass members to sign the on-duty

meal break agreement,” as well as the “evidence that, in the

vast majority of cases, this policy was implemented to require

on-duty meal breaks be taken.” A few months later, the court

reached the same conclusion in an order denying USSA’s

motion for reconsideration. Having been granted leave to

appeal, USSA challenges the district court’s certification of

the meal break sub-class on the grounds that the plaintiffs

have not established “commonality,” as required under

Federal Rule of Civil Procedure 23(a)(2), or “predominance,”

as required under Rule 23(b)(3).

II. STANDARD OF REVIEW

We review a district court’s decision to certify a class

under Rule 23 for abuse of discretion. In re Wells Fargo

Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957 (9th

Cir. 2009) (hereinafter “In re Wells Fargo”). “When

reviewing a grant of class certification, we accord the district

court noticeably more deference than when we review a

denial of class certification.” Wolin v. Jaguar Land Rover N.

Am., LLC, 617 F.3d 1168, 1171 (9th Cir. 2010) (quoting In re

Salomon Analyst Metromedia Litig., 544 F.3d 474, 480 (2d

Cir. 2008)) (internal quotation marks omitted). A district

court abuses its discretion if it (1) relies on an improper

factor, (2) omits a substantial factor, or (3) commits a clear

error of judgment in weighing the correct mix of factors. In

re Wells Fargo, 571 F.3d at 957. In addition, an error of law

is a per se abuse of discretion. Yokoyama v. Midland Nat.

Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010). We

review the district court’s findings of fact under the clearly

erroneous standard, meaning we will reverse them only if

8 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

they are (1) illogical, (2) implausible, or (3) without “support

in inferences that may be drawn from the record.” United

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).

III. ANALYSIS

We are concerned here with two overlapping

requirements for class certification. First, a party seeking

class certification must always show that “there are questions

of law or fact common to the class.” Fed. R. Civ. P.

23(a)(2).4 Second, “the proposed class must satisfy at least

one of the three requirements listed in Rule 23(b).” Wal-Mart

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548 (2011); see also

Fed. R. Civ. P. 23(b). Here, the plaintiffs seek certification

under Rule 23(b)(3), which requires, inter alia, that “the

questions of law or fact common to class members

predominate over any questions affecting only individual

members.” Fed. R. Civ. P. 23(b)(3). Thus, “Rule 23(a)(2)

asks whether there are issues common to the class,” and

“Rule 23(b)(3) asks whether these common questions

predominate.” Wolin, 617 F.3d at 1172. We begin our

analysis by considering whether the plaintiffs have satisfied

Rule 23(a)(2), keeping in mind that this analysis is also

relevant to Rule 23(b)(3). See id. (noting the “substantial

4

This requirement, known as the “commonality” requirement, is one of

the four familiar requirements of Rule 23(a): the party seeking class

certification must show that “(1) the class is so numerous that joinder of

all members is impracticable, (2) there are questions of law or fact

common to the class, (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests of the

class.” Fed. R. Civ. P. 23(a). USSA does not challenge the district court’s

determination that the meal break sub-class satisfies Rule 23(a)(1), (3),

and (4).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 9

overlap between the two tests”). We then turn to Rule

23(b)(3). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019

(9th Cir. 1998) (explaining that the requirements of Rule

23(a)(2) are “less rigorous than the companion requirements

of Rule 23(b)(3)”).

A. Rule 23(a)(2)

“The Supreme Court has recently emphasized that

commonality requires that the class members’ claims ‘depend

upon a common contention’ such that ‘determination of its

truth or falsity will resolve an issue that is central to the

validity of each claim in one stroke.’” Mazza v. Am. Honda

Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Wal-

Mart, 131 S. Ct. at 2551) (internal alteration omitted). Put

another way, the key inquiry is not whether the plaintiffs have

raised common questions, “even in droves,” but rather,

whether class treatment will “generate common answers apt

to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct.

at 2551 (quoting Richard A. Nagareda, Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132

(2009)) (emphasis added) (internal quotation marks and

alteration omitted). This does not, however, mean that every

question of law or fact must be common to the class; all that

Rule 23(a)(2) requires is “a single significant question of law

or fact.” Mazza, 666 F.3d at 589 (emphasis added); see also

Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036, 1041–42

(9th Cir. 2012), cert. denied, 133 S. Ct. 2361 (2013).

Here, the district court concluded that “a common legal

question that is presented and susceptible to class-wide

determination” is whether California’s “nature of the work”

exception to Industrial Welfare Commission (“IWC”) wage

order No. 4-2001 (“Wage Order No. 4-2001”)—which

10 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

governs meal periods—“applies to [USSA]’s single guard

post staffing model.”5 USSA counters that this question will

not generate a common answer, because USSA’s “nature of

the work” defense requires “an individualized, fact-specific

analysis” of each employee’s work history, including “a day-

by-day examination of an employee’s job duties.” We

therefore begin our Rule 23(a)(2) analysis by looking to state

law to determine whether the plaintiffs’ claims—and USSA’s

affirmative defenses—can yield a common answer that is “apt

to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct.

at 2551; see also Amgen Inc. v. Connecticut Ret. Plans &

Trust Funds, 133 S. Ct. 1184, 1194–95 (2013) (“Merits

questions may be considered to the extent—but only to the

extent—that they are relevant to determining whether the

Rule 23 prerequisites for class certification are satisfied.”).

We conclude that they can.

1.

Under California law, an employer may not “require any

employee to work during any meal . . . period mandated by an

applicable order of the Industrial Welfare Commission.” Cal.

Lab. Code § 226.7(a).6 Wage Order No. 4-2001, in turn,

guarantees certain employees a 30-minute meal period for

5

Wage Order No. 4-2001 regulates the wages, hours, and working

conditions for “professional, technical, clerical, mechanical, and similar

occupations.” Cal. Code Regs., tit. 8, § 11040.

6

If the employer does so, it “shall pay the employee one additional hour

of pay at the employee’s regular rate of compensation for each work day

that the meal or rest period is not provided.” Cal. Lab. Code § 226.7(b);

see also Cal. Code Regs., tit. 8, § 11040, subd. 11(B).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 11

every five hours of work.7 Cal. Code Regs., tit. 8, § 11040,

subd. 11(A); see also Cal. Lab. Code § 512(a) (“An employer

may not employ an employee for a work period of more than

five hours per day without providing the employee with a

meal period of not less than 30 minutes.”). The employee

must be “relieved of all duty” during this break; if not, the

meal period is considered “on-duty,” and counts as time

worked. The following three conditions apply to “on-duty”

meal periods:

An “on duty” meal period shall be permitted

only when the nature of the work prevents an

employee from being relieved of all duty and

when by written agreement between the

parties an on-the-job paid meal period is

agreed to. The written agreement shall state

that the employee may, in writing, revoke the

agreement at any time.

Cal. Code Regs., tit. 8, § 11040, subd. 11(A). The parties do

not dispute that the putative class members all signed a

written agreement which provided that it could be revoked;

their disagreement turns on whether USSA can defeat class

certification by invoking the “nature of the work” exception

to the off-duty meal period requirement. We first consider

the substantive scope of duties that may qualify for the

“nature of the work” exception, and we then consider two

recent state court decisions addressing policies similar to the

one in this case.

7

“The IWC’s wage orders are to be accorded the same dignity as

statutes.” Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal.

2012).

12 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

a.

The California state courts have not addressed the

substantive scope of the “nature of the work” exception.8 The

California Division of Labor Standards Enforcement

(“DLSE”), however, has issued several opinion letters

addressing when the “nature of the work” exception may

apply.9 “The DLSE’s opinion letters, while not controlling

upon the courts by reason of their authority, do constitute a

body of experience and informed judgment to which courts

and litigants may properly resort for guidance.” Brinker,

273 P.3d at 529 n.11 (internal quotation marks and citations

omitted). We look to them for guidance on what an employer

must show to invoke the exception, as well as examples

where DLSE has found that it is satisfied.10

8

There are, however, several state court decisions that address whether

the “nature of the work” exception can be decided on a class-wide basis

under California Code of Civil Procedure § 382; we discuss those cases

infra.

9

“The DLSE is the state agency empowered to enforce California’s

labor laws, including IWC wage orders.” Brinker, 273 P.3d at 529 n.11

(internal quotation marks and citations omitted).

10

USSA requests that we take judicial notice of certain documents,

including several DLSE Opinion Letters. “To the extent our opinion

references any of the materials, we grant [USSA’s] request[] for judicial

notice.” Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 824

n.3 (9th Cir. 2011); see also Fed. R. Evid. 201(b) (allowing the court to

take judicial notice of facts that are “not subject to reasonable dispute”

because they “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned”).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 13

First, DLSE has emphasized that the “on-duty” meal

period is a “limited[] alternative” to the off-duty meal period

requirement. DLSE Opinion Letter 2009.06.09 at 8.

Critically, it is “not described or defined as a waiver of an

off-duty meal period,” id. (emphasis added), but rather as “a

type of meal period that can be lawfully provided only in

those circumstances in which the three express conditions set

forth in [the regulation] are satisfied.”11 Id. Thus,

[i]n determining whether ‘the nature of the

work’ prevents an employee from being

relieved of all duty, [DLSE] starts with the

premise that the general requirement for an

off-duty meal period is remedial in nature,

and any exception to that general requirement

must be narrowly construed, so as to avoid

frustrating the remedial purpose of the

regulation.

DLSE Opinion Letter 2002.09.04 at 2. The employer has the

burden to “establish[] the facts that would justify an on-duty

meal period.” Id. at 2–3; see also DLSE Opinion Letter

2009.06.09 at 7; DLSE Opinion Letter 1994.09.28 at 4 (“In

the view of the Division, the onus is on the employer to show

that the work involved prevents the employee from being

relieved of duty.”).

11

DLSE Opinion Letter 2009.06.09 concerned IWC Wage Order No. 9-

2001, subd. 11(C), Cal. Code Regs., tit. 8, § 11090, subd. 11(C), which

applies to the transportation industry. Subdivision 11(C) contains the

same three requirements for any on-duty meal period as Wage Order 4-

2001, subd. 11(A), cited in the text, supra at 11.

14 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

Second, we can characterize the instances in which DLSE

has found that the “nature of the work” exception applies into

two categories: (1) where the work has some particular,

external force that requires the employee to be on duty at all

times, and (2) where the employee is the sole employee of a

particular employer.12 For example, in its most recent

opinion letter, DLSE concluded that employees who transport

hazardous materials, and are required by federal regulation to

attend to their vehicles at all times, are covered by the “nature

of the work” exception. DLSE Opinion Letter 2009.06.09 at

8. It emphasized the narrow scope of its conclusion,

however, explaining,

[W]e do not comment upon the application of

the on-duty meal period requirements for any

12

We do not—and cannot—hold that these are the only circumstances

under which the “nature of the work” exception may apply. To the

contrary, DLSE has laid out the following non-exhaustive factors that

should be considered when deciding whether the “nature of the work”

exception applies to a specific job:

(1) [T]he type of work, (2) the availability of other

employees to provide relief to an employee during a

meal period, (3) the potential consequences to the

employer if the employee is relieved of all duty, (4) the

ability of the employer to anticipate and mitigate these

consequences such as by scheduling the work in a

manner that would allow the employee to take an off-

duty meal period, and (5) whether the work product or

process will be destroyed or damaged by relieving the

employee of all duty.

DLSE Opinion Letter 2009.06.09 at 7. Thus, we make this observation

solely to note the broad types of positions that DLSE has determined

qualify for the “nature of the work” exception, as part of our limited

inquiry into the merits of the plaintiffs’ claims.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 15

period of time during which the driver is not

engaged in activity that is regulated by the

referenced federal regulations . . . . It may

indeed be the case that drivers may be

provided an off-duty meal period during these

times even though they are otherwise

prevented by the nature of their work from

taking a meal period during times in which

they are engaged in activity otherwise

governed by the [federal regulations].

Id. DLSE further allowed for the possibility that another

employee might be able to cover the driver, explaining.

Also, the nature of the work element may not

be satisfied under circumstances where the

employer may have another qualified

representative reasonably available to perform

the attending duties required under [federal

regulation]. For instance, drivers who

transport fuel in and around the Bay Area may

likely park their vehicle at one of the

Company’s yards and leave such vehicle

unattended in compliance with federal law in

order to take an off-duty meal period. Such a

driver would not be entitled to an on-duty

meal period if the nature of his or her work

did not prevent the driver from being relieved

of all duty.

16 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

Id.13 In another opinion letter, DLSE noted that the “nature

of the work” exception might apply where the position

involves “the continuous operation of machinery requiring

monitoring” that is “essential to the business of the

employer.” DLSE Opinion Letter 1994.09.28 at 2.

In addition to these jobs, which by their nature require the

employee to be present at all times, DLSE has also found that

the “nature of the work” exception would apply to an

“isolated” gas station “in which only a single employee is

present,” but only if there was not “another employee

employed at the worksite.” DLSE Opinion Letter 2003.11.03

at 3; see also DLSE Opinion Letter 1994.09.28 (noting that

“the nature of the work” exception might apply where “the

employee is the only person employed in the establishment

and closing the business would work an undue hardship on

the employer”). Cf. DLSE Opinion Letter 2002.09.04 at 2–3

13

In the same opinion letter, DLSE also considered whether the truck

drivers could be required to “sign a blanket agreement for on-duty meal

periods.” Id. at 3. DLSE concluded that they could, but emphasized that

“each” on-duty meal period covered by the agreement must independently

qualify for the “nature of the work” exception:

It is the opinion of the Division that the Company and

employee may enter into a single agreement so long as

the conditions necessary to establish that the nature of

the employee’s work prevents the employee from being

relieved of all duty are met for each applicable on-duty

meal period taken.

Id. at 9 (emphasis added). Although not dispositive of any issue, DLSE’s

response supports the plaintiffs’ argument that it is unlawful for USSA to

impose a uniform policy of requiring “on-duty” meal periods, given

USSA’s own admission that, “beyond the variation in general duties by

post,” the guards’ day-to-day responsibilities also vary.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 17

(concluding that the “nature of the work” exception does not

apply to late-night shift managers at fast-food restaurants, in

part because other employees are on duty and could cover for

the manager).14

b.

With this understanding of the “nature of the work”

defense, we turn to two recent state court decisions that guide

our analysis of Rule 23(a)(2)’s commonality requirement.

First, in Brinker, the California Supreme Court clarified

multiple “issues of significance to class actions generally and

to meal and rest break class actions in particular.” 273 P.3d

at 520. Of particular importance here, the court in Brinker

held that the California Court of Appeal had erred in

reversing the superior court’s certification of a class of

14

USSA argues that the district court applied the wrong legal standard

because it initially cited one of the DLSE opinion letters for the

proposition that “an off-duty meal period must be provided unless . . . the

nature of the work makes it virtually impossible for the employer to

provide the employee with an off-duty meal period.” DLSE Opinion

Letter 2002.09.04 at 2. As USSA correctly argues, DLSE has rejected the

“virtually impossible” standard as “narrow, imprecise, and arbitrary.”

DLSE Opinion Letter 2009.06.09 at 7.

We disagree that the district court applied the wrong legal standard.

As an initial matter, the district court did not “apply” any legal standard;

it merely looked to the DLSE opinion letters as part of its preliminary

inquiry into the merits, to determine whether class certification was

appropriate. Furthermore, the district court clarified its initial ruling when

it denied USSA’s motion for reconsideration, explaining that its previous

citation to the “virtually impossible” standard “was not determinative in

[its] analysis,” and that the “analytical role” it played “was merely to

express that the showing necessary to establish the ‘nature of the work’

exception is a high one.” We are therefore satisfied that the district court

applied the correct legal standard.

18 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

plaintiffs who alleged that their employer uniformly denied

them rest breaks. Although the court’s analysis arose in the

context of a representative action under California Code of

Civil Procedure § 382, it also spoke to the liability that would

arise under such a scenario:

[T]he Court of Appeal concluded that because

rest breaks can be waived—as all parties

agree—“any showing on a class basis that

plaintiffs or other members of the proposed

class missed rest breaks or took shortened rest

breaks would not necessarily establish,

without further individualized proof, that

Brinker violated” the Labor Code and Wage

Order No. 5. This was error. An employer is

required to authorize and permit the amount

of rest break time called for under the wage

order for its industry. If it does not—if, for

example, it adopts a uniform policy

authorizing and permitting only one rest

break for employees working a seven-hour

shift when two are required—it has violated

the wage order and is liable. . . .

. . . The theory of liability—that Brinker has a

uniform policy, and that that policy, measured

against wage order requirements, allegedly

violates the law—is by its nature a common

question eminently suited for class treatment.

Id. at 531–32 (emphasis added).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 19

The California Court of Appeal subsequently interpreted

and applied Brinker in a case with strikingly similar facts to

the case before us. See Faulkinbury v. Boyd & Assocs.,

216 Cal. App. 4th 220 (2013). In Faulkinbury, the putative

class was made up of private security guards whose employer

“had a uniform policy of requiring all security guard

employees to take paid, on-duty meal breaks and to sign an

agreement by which the employee agreed” to such on-duty

meal breaks. Id. at 233. The court of appeal concluded that

the employee’s liability turned on “the issue [of] whether

Boyd’s policy requiring all security guard employees to sign

blanket waivers of off-duty meal breaks is lawful,” id. at 234,

explaining,

Brinker leads us . . . to conclude Boyd would

be liable upon a determination that Boyd’s

uniform on-duty meal break policy was

unlawful . . . . [T]he employer’s liability

arises by adopting a uniform policy that

violates the wage and hour laws. Whether or

not the employee was able to take the required

break goes to damages . . . .

20 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

Id. at 235 (emphasis added).15 The court of appeal explicitly

rejected the defendant’s argument that the “nature of the

work” exception applied, concluding that, “by requiring

blanket off-duty meal break waivers in advance from all

security guard employees, regardless of the working

conditions at a particular station,” the defendant itself “treated

the off-duty meal break issues on a classwide basis.” Id. at

234; see also Bradley v. Networkers Int’l, LLC, 150 Cal. Rptr.

3d 268, 284–85 (Cal. Ct. App. 2012), as modified on denial

of reh’g (Jan. 8, 2013) (“The lack of a meal/rest break policy

and the uniform failure to authorize such breaks are matters

of common proof.”), review denied (Mar. 20, 2013); Bufil v.

Dollar Fin. Grp., Inc., 76 Cal. Rptr. 3d 804, 811 (Cal. Ct.

App. 2008) (concluding that the plaintiff’s theory that “two

circumstances—single employee on duty or providing

training—do not come within the ‘nature of the work’

exception” was “a legal question” that could be resolved on

15

The court of appeal had initially affirmed an order denying class

certification, holding that “individual issues of fact [would] predominate,”

because “the ability of each of [the] security guard employees to take an

off-duty meal break depended on individual issues,” such as the specific

post to which the employee was assigned, as well as “whether under the

specific circumstances each employee could be relieved to take a meal

break.” Faulkinbury v. Boyd & Assocs. (Faulkinbury I), 112 Cal. Rptr. 3d

72, 87 (Cal. Ct. App. 2010), review granted and opinion superseded,

240 P.3d 1215 (Cal. 2010). However, the California Supreme Court

subsequently ordered the court of appeal to “vacate its decision and to

reconsider the cause” in light of Brinker, 273 P.3d 513. Faulkinbury v.

Boyd & Associates, Inc., 279 P.3d 1019 (Cal. 2012). Upon

reconsideration, the court of appeal reversed the superior court’s denial of

class certification, as discussed above. The California Supreme Court

denied a petition for review and request for de-publication on July 24,

2013. See California Courts, Appellate Courts Case Information,

http://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=

0&doc_id=2048870&doc_no=S211515 (last visited September 2, 2013).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 21

a class-wide basis). Of course, we are not bound by the

California Court of Appeal’s determination under California

law that the sub-class certified by the district court is

amenable to class-wide treatment. See Cal. Civ. Proc. Code

§ 382. However, insofar as Faulkinbury interprets Brinker’s

holding regarding the potential liability of an employer under

California law, it is directly on point for our analysis.

2.

In light of these state authorities, we conclude that the

plaintiffs’ claims will yield a common answer that is “apt to

drive the resolution of the litigation,” as required by Rule

23(a)(2). Wal-Mart, 131 S. Ct. at 2551. First, as the district

court explained, the DLSE letters make clear that “the

showing necessary to establish the ‘nature of the work’

exception is a high one.” In order to make such a showing,

USSA had to demonstrate not just that its employees’ duties

varied, but that they varied to an extent that some posts would

qualify for the “nature of the work” exception, while others

would not. It failed to do so. Indeed, USSA’s sole

explanation for why it requires on-duty meal periods is that

its guards are staffed at single-guard locations. It does not

argue that any particular posts would qualify for the “nature

of the work” exception absent the single-guard staffing

model. In fact, when asked if he could think of “examples”

where “the nature of the work requires an on-duty meal

break,” Flury testified that he could not.16 Thus, the crux of

the issue is that the class members’ duties do not allow for a

16

The only example of a site that “requires[] an on-duty meal break” that

Flury could identify was a union site, since USSA “follow[s] some of the[]

union rules just to parallel them.”

22 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

meal break solely because no other guards are available to

cover for them during their meal periods.

Consider, for example, the illustrative list of duties that

USSA has provided to demonstrate the variety of its

employees duties:

[T]he duties performed by security guards

include patrolling parking lots; checking

receipts; signing in and out trucks; setting up

school parking lots and assisting with student

drop-offs and pick-ups; inspecting vehicles;

restraining unruly patients; escorting dead

bodies; checking the inventory, mileage, and

temperature of trucks; working undercover to

catch shoplifters; monitoring psychiatric

patients; checking in employees and

answering phones at a front desk; performing

surveillance; and enforcing hotel quiet hours.

These duties are undoubtedly distinct from one another, but

the only reason any of them “prevent” the employee from

taking a meal period is because USSA has chosen to adopt a

single-guard staffing model. See Cal. Code Regs., tit. 8,

§ 11040, subd. 11(A) (stating that an “on-duty” meal period

is permitted “only when the nature of the work prevents an

employee from being relieved of all duty” (emphasis

added)).17

17

In this way, the duties of USSA’s employees are distinct from, for

example, a truck driver who is required by federal regulation to attend to

his vehicle at all times, DLSE Opinion Letter 2009.06.09 at 7–8, or a

worker whose job involves the “continuous operation of machinery

requiring monitoring,” DLSE Opinion Letter 1994.09.28 at 2.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 23

On this basis, we conclude that the merits inquiry will

turn on whether USSA is permitted to adopt a single-guard

staffing model that does not allow for off-duty meal

periods—namely, whether it can invoke a “nature of the

work” defense on a class-wide basis, where the need for on-

duty meal periods results from its own staffing decisions.

Such an inquiry is permissible under Brinker and

Faulkinbury; the latter clarified that an employer may be held

liable under state law “upon a determination that [its] uniform

on-duty meal break policy [is] unlawful,” with the “nature of

the work” defense being relevant only to damages.

Faulkinbury, 216 Cal. App. 4th at 235. Thus, the legality of

USSA’s policy is a “significant question of law,” Mazza,

666 F.3d at 589, that is “apt to drive the resolution of the

litigation” in this case, Wal-Mart, 131 S. Ct. at 2551. We

therefore hold that the district court did not abuse its

discretion in concluding that Rule 23(a)(2) was satisfied.

B. Rule 23(b)(3)

We next turn to Rule 23(b)(3), which asks if “the

questions of law or fact common to class members

predominate over any questions affecting only individual

members.” Fed. R. Civ. P. 23(b)(3) (emphasis added).

Although there may be “some variation” among individual

plaintiffs’ claims, Local Joint Exec. Bd. of

Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,

244 F.3d 1152, 1163 (9th Cir. 2001) (emphasis added), “Rule

23(b)(3)’s predominance criterion is even more demanding

than Rule 23(a),” Comcast Corp. v. Behrend, 133 S. Ct.

1426, 1432 (2013). “A principal purpose behind Rule 23

class actions is to promote efficiency and economy of

litigation.” In re Wells Fargo, 571 F.3d at 958 (internal

quotation marks omitted). Thus, “[t]he predominance

24 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

analysis under Rule 23(b)(3) focuses on ‘the relationship

between the common and individual issues’ in the case,” and

tests whether the proposed class is “‘sufficiently cohesive to

warrant adjudication by representation.’” Wang v. Chinese

Daily News, Inc., 08-55483, 2013 WL 4712728 at * 5 (9th

Cir. Sept. 3, 2013) (quoting Hanlon, 150 F.3d at 1022). Here,

we conclude that it is.

1.

First, our analysis of the “nature of the work” exception,

supra, drives our conclusion that Rule 23(b)(3) is satisfied

here. Cf. Erica P. John Fund, Inc. v. Halliburton Co.,

131 S. Ct. 2179, 2184 (2011) (“Considering whether

‘questions of law or fact common to class members

predominate’ begins, of course, with the elements of the

underlying cause of action.”). We have concluded that the

“nature of the work” defense can, and will, be applied on a

class-wide basis in this case. We offer no opinion on whether

USSA’s “single-guard” staffing model will qualify for the

“nature of the work” exception.18 But “Rule 23(b)(3) requires

[only] a showing that questions common to the class

18

Indeed, the DLSE opinion letters do not provide a definite metric for

deciding in what circumstances a lone employee may be permitted to take

an on-duty meal break—for example, it is not clear if an employee must

be (1) the sole employee on duty at a particular time, (2) the sole employee

staffed at a particular location, or (3) the sole employee working for the

employer in order to qualify for the “nature of the work” exception. Cf.

DLSE Opinion Letter 2003.11.03 (concluding that the “nature of the

work” exception would apply to an “isolated” gas station with “a single

employee,” but not if “another employee [is] employed at the worksite”);

DLSE Opinion Letter 1994.09.28 (explaining that the “nature of the work”

exception might apply where “the employee is the only person employed

in the establishment and closing the business would work an undue

hardship on the employer”).

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 25

predominate, not that those questions will be answered, on

the merits, in favor of the class.” Amgen Inc., 133 S. Ct. at

1191 (emphasis removed); see also United Steel, Paper &

Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv.

Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co.,

593 F.3d 802, 808 (9th Cir. 2010) (holding that the district

court “abused its discretion by declining certification based

on the possibility that plaintiffs would not prevail on the

merits on their ‘on duty’ theory,” where the plaintiffs’ theory

was that certain restrictions on their meal breaks made the

meals “on duty” under California law (emphasis removed)).

And where, as here, “there are no relevant distinctions

between the worksites,” we agree with the district court that

“the ‘nature of the work’ inquiry would be a common one,”

focused on the legality of a single-guard staffing model,

“rather than a site-by-site” inquiry. Viewing the meal break

sub-class’ claims in this manner undercuts USSA’s primary

argument that individual issues will predominate due to its

need to present an individual “nature of the work” defense for

each plaintiff and each worksite.

2.

We are mindful that it is an abuse of discretion for the

district court to rely on uniform policies “to the near

exclusion of other relevant factors touching on

predominance.” In re Wells Fargo, 571 F.3d at 955; see also

Wang, 2013 WL 4712728 at *5; Vinole v. Countrywide Home

Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009). Thus, in In re

Wells Fargo, we held that the district court had abused its

discretion when it certified a class of home mortgage

consultants (“HMCs”), all of whom Wells Fargo had

classified as “exempt from overtime laws,” under Rule

23(b)(3). 571 F.3d at 955. The district court in In re Wells

26 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

Fargo had found that it would need to analyze “the job

experiences of the individual employees, including the

amount of time worked by each HMC, how they spend their

time, where they primarily work, and their levels of

compensation,” but nevertheless decided that the uniform

exemption policy “weigh[ed] heavily in favor of class

certification.” Id. at 956. We held that it was an abuse of

discretion for the district court to rely on the “blanket

exemption policy,” which “[did] nothing to facilitate common

proof,” since the court would still have to consider how

“individual employees actually spent their time” in order to

decide if they were exempt from overtime requirements. Id.

at 959 (emphasis added); see also id. at 957 (explaining that

a district court abuses its discretion when it makes “a clear

error of judgment in placing too much weight on [a] single

factor vis-a-vis the individual issues”). We reached the same

conclusion in two other cases that required the district court

to consider whether individual employees were properly

classified as “exempt” employees. See Wang, 2013 WL

4712728 at *5 (noting that “the district court’s conclusion

that common questions predominate in this case rested on the

fact, considered largely in isolation, that plaintiffs are

challenging CDN’s uniform policy of classifying all reporters

and account executives as exempt employees,” and vacating

the district court’s finding of predominance under Rule

23(b)(3) (emphasis added)); Vinole, 571 F.3d at 945

(affirming the district court’s denial of class certification

where the court’s exemption analysis would be “fact-

intensive” and require an “individualized analysis of the way

each employee actually spends his or her time”).

This case is not like In re Wells Fargo, Wang, or Vinole.

First, unlike in those cases, federal or state exemption

classifications—which may sometimes be fact-intensive—are

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 27

not at issue here. Cf. In re Wells Fargo, 571 F.3d at 959

(explaining that the “federal outside salesperson exemption”

often “requires ‘a fact-intensive inquiry into each potential

plaintiff’s employment situation’” (quoting the district

court)); Vinole, 571 F.3d at 945 (explaining that under

California law, “a court evaluating the applicability of the

outside salesperson exemption must conduct an

individualized analysis of the way each employee actually

spends his or her time,” and the court’s “analysis of the FLSA

exemption” is likewise “a fact-intensive inquiry” (emphasis

added)).

Second, unlike in Wells Fargo and Vinole, the district

court did not rely on the existence of USSA’s uniform on-

duty meal period policy to the exclusion of other factors. To

the contrary, the district court found that nearly all of the

evidence in the record—including Flury’s testimony about

USSA’s actual business practices, as well as the declarations

of USSA’s employees—supports a finding that common

questions would predominate. For example, the court found

that Flury’s testimony described “more than a policy,” since

he also explained how USSA’s “policies and practices are

implemented on the ground.” In considering the employee

declarations, the court found that “[n]one of these

declarations establishes that the declarant was categorically

given off-duty meal breaks.” And, “[g]iven the uniform

policy of requiring . . . the on-duty meal break agreement,”

the court further found that, “in the vast majority of cases,

this policy was implemented to require [that] on-duty meal

breaks be taken.” In light of these findings, the district court

properly concluded that the employee declarations “did not

indicate a lack of predominance.”

28 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

USSA nevertheless challenges the district court’s factual

findings, particularly with regard to the employee

declarations. USSA argues that it staffs its guards in groups

“ranging from one guard per shift to up to 30 guards per shift

and practically everything in between.” It further argues that

“at many locations, ‘off-duty’ meal periods were provided.”

But these arguments directly contradict the statements that

Flury made during his deposition. Flury testified to three

critical facts. First, he initially testified that 99.9% of

employees work at single guard posts (he later changed his

answer to say that “a large majority” of employees work at

such posts).19 Second, Flury testified that no single guard

post allowed for a lunch break. (“I don’t know of any single

post that has a lunch break as part of the program.”). Third,

Flury made clear that such “on-duty” meal periods are

required as a matter of policy—not necessity—explaining

that one of the “requirements as signed to by the wavier” was

for the guards to eat lunch at their posts. In fact, when asked

if one USSA employee could relieve another for a meal

period, Flury responded, “[b]ut then [the employee] wouldn’t

be doing his job, would he? No.”20

We agree with the district court that although USSA “may

wish to distance itself from Flury’s statements, his admissions

were material and [are] properly before us.” Furthermore, to

the extent the employee declarations submitted by USSA are

19

We note that, although Flury changed some of his answers by errata,

he did not change his statement that USSA’s business is “all made up of

single posts.”

20

As discussed supra, Flury stated in his deposition that the on-duty

meal period was part of the “nature of the business,” but when asked for

an example where “the nature of the work requires an on-duty meal

break,” he could not think of one, other than a union site.

ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 29

not entirely consistent with Flury’s testimony, we defer to the

district court’s decision to weigh his testimony over the

employee declarations. We cannot say, in light of all the

evidence, that the district court’s findings of fact were

“illogical,” “implausible,” or “without support in inferences

that may be drawn from the facts in the record.” See Hinkson,

585 F.3d at 1262. The district court here did not abuse its

discretion by finding, on the record before it, that common

issues of law or fact would predominate.

3.

Finally, USSA argues that individual issues will

predominate because USSA’s “time records will not

dispositively show which meal periods were ‘off duty’ meal

periods” for any given employee. As a factual matter,

however, USSA’s argument is again belied by the record.

Many of the employee declarations describe keeping records

of their time worked. And, as the district court noted, “given

Flury’s admission that those staffed at single guard posts

were required to take on-duty meals, Defendant’s records of

each employee’s clock-in and clock-out times, how much he

was paid, and whether he was staffed at a single guard post,

can be used to extrapolate whether his meal break was on- or

off-duty.” For example, Flury testified that “for on-duty meal

breaks, the sign-in sheets would just have a start time and end

time.” In light of these records, it would not be difficult to

determine USSA’s liability to individual plaintiffs, nor would

it be overly-burdensome to calculate damages.

For the foregoing reasons, we conclude that the plaintiffs’

claims “will prevail or fail in unison,” as required by Rule

23(b)(3). See Amgen Inc., 133 S. Ct. at 1191. The district

30 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.

court did not abuse its discretion in concluding that Rule

23(b)(3) was satisfied.

IV. CONCLUSION

In sum, we conclude that the district court did not abuse

its discretion by certifying the meal break sub-class.

AFFIRMED.