# Arredondo v. Delano Farms Co.

> District Court, E.D. California · February 21, 2014 · 301 F.R.D. 493

URL: https://www.frixlaw.com/law-library/cases/8771340

## Case

- **Full name:** Sabas ARREDONDO v. DELANO FARMS CO.
- **Court:** District Court, E.D. California
- **Decided:** February 21, 2014
- **Citations:** 301 F.R.D. 493; 2014 U.S. Dist. LEXIS 22658; 2014 WL 710945
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Seng
- **Judges:** Seng
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8771340

## How later opinions describe it (automated extraction)

- holding, in case involving alleged violations of state wage and hour provisions, that "considering the nature and circumstances in which [employees’] statements were made and recorded ... the [c]ourt cannot find they reflect significant inconsistencies”
- finding expert’s statistical analysis of alleged wage and hour violations that only evaluated declarations submitted -by plaintiffs to be “based upon a limited pool of information” and irrelevant to class certification

## Opinion text

ORDER PARTIALLY GRANTING MOTIONS TO DECERTIFY CLASS
MICHAEL J. SENG, United States Magistrate Judge.
On April 19, 2011, the Court granted in part Plaintiffs’ Sabas Arrendondo, Jose Cue-vas, Hilario Gomez, Irma Landeros and Ro-salba Landeros (collectively, “Plaintiffs”) motion seeking class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. (ECF No. 85.) On March 22, 2013, Defendants filed separate motions for decer-tification of the class. 1 (ECF Nos. 273, 275.) On April 29, 2013, Plaintiffs filed a single opposition to both decertification motions. (ECF No. 286.) Defendants filed replies to the opposition on May 13, 2013. (ECF Nos. 293, 295.) The Court has read and considered the pleadings and supporting documents, and it heard oral arguments by eoun-sel on September 27, 2013. Based on the consent of the parties, the matter stands ready for adjudication before the magistrate judge. (See ECF Nos. 277-79.)
I. PROCEDURAL HISTORY
Defendants Cal-Pacific Farm Management, L.P. (“Cal-Pacific”) and T & R Bangi’s Agricultural Services, Inc. (“T & R Bangi”) are both farm labor contractors (collectively the “Employers”). 2 Plaintiffs are agricultural workers who have been employed by Cal-Pacific or T & R Bangi during the past four years. Employers contract with entities such as Delano Farms Company (“Delano Farms”) which grows and markets table grapes.
Plaintiffs filed the instant action on July 17, 2009 alleging federal and state law wage and hour violations against Employers, including claims pursuant to the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq. (“AWPA”).
On January 28, 2011, Plaintiffs filed a motion to certify a class action in this matter. Plaintiffs proposed to represent one class of workers composed of the following:
Ml non-exempt agricultural employees of Delano Farms Company, Cal-Pacific Farm Management, L.P., and T & R Bangi’s Agricultural Services, Inc. who performed field work at Delano Farms in California from four (4) years prior to the filing of this action to the present, excluding irriga-tors, tractor drivers, swampers and workers employed only in cold-storage.
(ECF No. 75, Moving papers p. 2.)
Plaintiffs also requested that the Court appoint as class counsel Wasserman, Cam-don, Casselman & Esensten and Marcos Camacho, A Law Corporation. Upon briefing, including supplemental briefing regarding potential subclasses, the Court granted the motion to certify in part. (ECF No. 85.) *499 Specifically, the Court authorized Plaintiffs to pursue claims on behalf of the following four subclasses:
(1) Field workers who performed uncompensated and unrecorded work before the fixed start time in the harvest and pre-harvest work.
(2) Field workers who performed uncompensated and unrecorded work after the fixed stopping time in the harvest work.
(3) Field workers who performed uncompensated and unrecorded work after hours by washing their picking trays at home.
(4) Field workers who incurred unreim-bursed necessary tools expenses in the harvest and pre-harvest work.
On May 27, 2011, the Court appointed Plaintiffs as representatives of the subclasses and approved notice to class members. (ECF No. 91.) On February 2, 2012, Delano Farms filed a motion for summary judgment alleging that it was not a joint employer of Plaintiffs or class members. (Mot., ECF Nos. 112-122.) After briefing, the Court denied the motion for summary judgment on April 12, 2012 finding that there were factual disputes regarding whether Delano Farms exercised control over the wages, hours, or working conditions of Plaintiffs or suffered or permitted them to work and that those factual issues precluded summary judgment. (Order, ECF No. 165.)
Following the denial of the summary judgment motion, Delano Farms filed a motion to bifurcate the trial. (ECF No. 169.) On June 20, 2012, the Court ordered separate trial of the issue of whether Delano Farms employed Plaintiffs. (ECF No. 175.) The Court held a bench trial on the latter issue from January 15, 2013 to January 30, 2013, and on February 5, 2013, found that Delano Farms was a joint employer. (Order, ECF No. 259.)
On November 13, 2012, prior to trial on the joint employer issue, Defendants filed motions for decertification of the class. (ECF Nos. 203, 205.) However, the Court vacated the motions until after the first phase of trial. (ECF No. 206.) Defendants re-filed the motions for class decertification on March 22, 2013. (ECF Nos. 273, 275.) Oral arguments were heard on the motions on September 27, 2013, and the matter stands ready for adjudication. 3
II. RELEVANT EVIDENCE
A. Evidence Presented With Regard to Motion for Certification
In connection with the instant decertification motions, the Court is presented with and considers evidence originally produced in support of and opposition to the motion for certification and additional evidence provided post-certification.
The Court described the state of the evidence previously presented as follows:
In support of this motion to certify the class, plaintiffs submit sixty-three (63) declarations and deposition testimony from proposed class members who worked in 28 different crews for the Employers. (See Doc. 75-3.) Each of plaintiffs’ submitted declarations provides the following kinds of testimony: statement of the year/seasons that the employee worked for Employers; how many days per week he/she worked; payment scale; equipment purchased, if any; whether the employee was required to report to work before the start time; what activities the employee engaged in before or after start time; and estimates of the time the employee worked off-the-clock. (See e.g., Doe. 75-4, Rima Areeo Decl. Exh. 11; Magdaleno Castaneda Deck Exh. 18; Mario Marelos Deck Exh. 49.) Each of plaintiffs’ declarants states that they were required to work before official start-time and after official end-time. (The amount of time fluctuated generally between 15-30 minutes before and after official start time.) For instance, Rodolfo Gomez testifies that during pre-harvest and harvest, “I was required to arrive at the jobsite approximately 15 before the official start time.” (Doe. 75-7, Rodolfo Gomez Deck ¶ 6-5; Exh. 34.) Each de-clarant further states that the declarant purchased tools to do the work because if the Employers tools were provided, the tools were so inferior the work could not *500 be performed. For instance, Estela Izazaga testifies that “I was required to provide my own tools and equipment that I needed for my job. The tools and equipment that I was required to take to my job were picking shears that cost me $10.00 and a holster that cost me $7.00.” (See e.g., Doc. 75-4, Estala Izazaga Decl. ¶ 5, Exh. 43.)
Employers also present some 89 declar-ants who testify the opposite of plaintiffs’ declarants; that they were not subject to wage and hour violations. (Doc. 76.) Each declarant states: the declarant is a current employee; that he/she is required to attend “escuelita,” but is paid for that time; he/she is never required to perform work off-the-clock; he/she is never permitted to do work before the beginning of the shift or after the shift ends; he/she is never required to work at home; he/she is provided all the tools needed to do the job and the tools are adequate; and he/she is provided with all meals and rest periods. For instance, Jose Bermudes testifies that he is “never required to do work after my shift has ended,” and is “never required to do work at home.” (Doc. 76-1, Jose Ber-mudes Deck ¶ 4, 5, Exh. 12.) Marta Lucio states that “I am required to attend ‘escue-lita’ almost every morning at the beginning of my shift ... It is always held while employees are on the clock and I am always paid the time I spend in school.” (Doc. 76-3, Marta Lucio Deck ¶2, Exh. 50.) The declarations state that there have been no violations.
Arrendondo v. Delano Farms Co., 2011 WL 1486612 , *7-9, 2011 U.S. Dist. LEXIS 44134 , *21-25. In addition to the declarations, Plaintiffs submitted the declaration of Kenneth L. Creak (ECF No. 75-2.) Creal, a certified public accountant, provided a declaration in which he concluded that there was significant evidence that putative class members performed uncompensated work, that Employers failed to keep adequate time records, and that there were significant claims by putative class members for reimbursement for tools. (Id.) Plaintiffs also submitted portions of deposition transcripts of putative class members and of persons most knowledgeable for Employers. (See Decl. of Gregory Ramirez, Exs. 73-89; ECF Nos. 75-11 to 75-14.)
Defendants, in opposition to the motion to certify, in addition to submitting declarations of employees that stated that violations did not occur, provided declarations of Marife Villar, T & R Bangi’s safety manager who was responsible to ensure foremen read company polices to the employees (ECF No. 76-4 at 90-91), declarations of six foremen stating that the alleged practices did not occur (ECF No. 76-1 at 92-100, ECF No. 76-5 at 1-8), and excerpts of depositions of certain employees (ECF No. 76-5 at 9-63). Defendants produced the declaration of Teny Bangi to which were attached several hundred pages of exhibits characterized as invoices for tools purchased for employees. Finally, Craig Neville, the administrative assistant for T & R Bangi, provided a declaration stating that wage violations did not occur.
B. New Evidence Presented With Regard to Motions for Decertification
In support of the motions for decertification, Defendants have presented thirty nine new declarations of workers and foremen. (See Declaration of Sarah Gohmann Bigelow (“Bigelow Decl.”) at ¶ 4, ECF No. 275-2.) Delano Farms, in support of its motion to decertify, provided the declaration of Sarah Gohmann Bigelow. In the declaration, Bigelow provides four graphs showing which declarants, arranged by foremen, asserted violations in each subclass. (See Bigelow Decl., Exs. A, D, G, J.) In support of the graphs, Bigelow provides “a table supporting the summary chart, which cites the specific declarations or deposition testimony relied upon in the summary chart (Exhibits B, E, H, and K); and a table summarizing the specific allegations made in the declarations submitted by Plaintiffs in support of class certification (Exhibits C, F, I, and L).” (Id. at ¶ 9.) The charts were based on 194 declarations from individual employees including 69 declarations filed by Plaintiff in support of the motion for certification, 87 declarations submitted by Defendants in opposition to the motion for certification, and 38 new declarations obtained by Defendants and provided with their motions for decertification. 4 (Id. *501 at ¶ 4.) In addition to the charts and new declarations, Delano Farms includes excerpts from twenty (20) depositions of various field workers. (See Id., Exs. UU-NNN.) Finally, Bigelow provides a supplemental declaration in support of Delano Farm’s reply brief with revised charts containing further categories of information. (See Supp. Bigelow Decl., ECF No 293.)
Employers provide a declaration of Michael Johnson in which he provides both new and old declarations of workers in support of decertification. (See Declaration of Michael Johnson (“Johnson Deck”), ECF No. 273-3.) In his declaration, Johnson provides declarations from ten employees to attempt show that the original declarations provided by Employers, although drafted in the present tense, applied to the entire period that the employee worked at Delano Farms. (Id., Exs. 1-10.) Johnson also provides seven new declarations from workers who decided to opt out of the class upon receiving notice. (Id., Exs. 11-17.) Next, Johnson provides copies of previously filed declarations, and excerpts from their depositions to attempt to show that the declarants gave inconsistent statements. (Id., Exs. 18-47.) Finally, Johnson provides copies of deposition testimony of declarants who admitted to attending union meetings (to attempt to show bias), a copy of the declaration of Marife Villiar, the safety manager for T & R Bangi, that was previously filed in support of the certification motion, and a copy of the certification order. (Id. at 48-50.)
Employers also provide a declaration from Terry Bangi, president of T & R Bangi. (Bangi Decl., ECF No. 273-8.) Bangi previously provided a declaration in opposition to the motion to certify, and, unlike the present motion, attached hundreds of pages of receipts to attempt to show that tools were purchased. (See ECF No. 76-7.)
Employers also provide the declaration of David Brashears, a certified public accountant. (See ECF Nos. 273-9 to 273-13.) Brashears reviewed the employment records of Defendants and created spreadsheets showing the time period when each declarant worked, and, when possible, the foreman for whom the declarant worked. (Id.) Craig Ne-ville, an administrative assistant at T & R Bangi, signed an updated declaration describing the policies provided to the workers. (See Neville Decls., ECF Nos. 76-6, 273-14.)
Employers provide the declaration of Cesar Trujillo in support of the decertification motion. (Trujillo Decl., ECF Nos. 273-16 to 273-39.) Trujillo presents copies of his reports and interview notes to show that the declarations originally provided in opposition to the certification motion, though phrased in the present tense, actually referred to past employment practices. (Id.)
Finally, Employers present the declaration of Michael P. Ward, an economist, who asserts that there is no statistical basis to claim a common policy or practice applied to the class members. (See Ward Decl., ECF Nos. 273-40, 273-41.)
In support of their opposition to the motion for decertification, Plaintiffs present declarations of nine fieldworkers who previously filed declarations for Defendants, but who now explain that their original declarations did not accurately reflect the work practices they observed. (See Perero Decl., Exs. B-J, ECF No. 286-1.)
III. LEGAL STANDARDS FOR CLASS CERTIFICATION AND DECERTI-FICATION
A. Class Decertification
“District eourt[s] retain[ ] the flexibility to address problems with a certified class as they arise, including the ability to decertify.” United Steel Workers v. ConocoPhillips Co., 593 F.3d 802 (9th Cir.2010). “Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982). Under Federal Rule of Civil Procedure 23(c)(1)(C), a “[a] district court may decertify a class at any time.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966 (9th Cir.2009). In deciding whether to decertify, a court may consider “subsequent *502 developments in the litigation,” Falcon, 457 U.S. at 160 , 102 S.Ct. 2364 , including “previous substantive rulings in the context of the history of the case, and ... the nature and range of proof necessary to establish the class-wide allegations.” Marlo v. UPS, 251 F.R.D. 476, 479 (N.D.Cal.2008). The standard is the same for class decertification as it is with class certification: a district court must be satisfied that the requirements of Rules 23(a) and (b) are met to allow plaintiffs to maintain the action on a representative basis. Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 947 (9th Cir.2011). Likewise, Plaintiff, as “[t]he party seeking class eertification[,] bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met.” Marlo, 639 F.3d at 947 ; United Steel Workers v. ConocoPhillips Co., 593 F.3d at 807 .
Plaintiffs assert that because Defendants are presenting arguments already addressed in the class certification process, the motions should be construed as motions for reconsideration. Given the clarity of the above-cited law governing decertification, this contention by Plaintiffs is rejected.
B. Law Governing Class Certification
To obtain class certification, Plaintiffs bear the burden of showing they meet each of the four requirements of Federal Rule of Civil Procedure 23(a), together with at least one of the requirements of Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir.2011).
The four Rule 23(a) requirements are nu-merosity, commonality, typicality, and adequacy, i.e., (1) the class must be so large that joinder of all members is impracticable; (2) there must be one or more questions of law or fact common to the class; (3) the named parties’ claims must be typical of the class; and (4) it must appear that the class representatives will fairly and adequately protect the interests of other members of the class. Fed.R.Civ.P. 23(a); Ellis, 657 F.3d at 980 . Defendants here do not dispute numerosity or adequacy. Resolution of this motion therefore hinges on the interrelated questions of commonality and typicality. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364 (“The commonality and typicality requirements of Rule 23(a) tend to merge.”).
The Court must perform “a rigorous analysis [to ensure] that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores v. Dukes, — U.S. —, 131 S.Ct. 2541, 2551 , 180 L.Ed.2d 374 (2011) (citation and internal quotation marks omitted). The plaintiff must prove that the proposed class presents common questions of law or fact. Id. at 2550-51 . This means that the class members’ claims “must depend upon a common contention ... of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 2551 .
As for Rule 23(b), Plaintiff contends the proposed class satisfies either its first or third prong, i.e., that prosecuting separate actions by individual class members would create a risk of inconsistent results or “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b). “While Rule 23(a)(2) asks whether there are issues common to the class, Rule 23(b)(3) asks whether these common questions predominate. Though there is substantial overlap between the two tests, the 23(b)(3) test is ‘far more demanding,’ and asks ‘whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Wolin v. Jaguar Land Rover North America, 617 F.3d 1168, 1172 (9th Cir.2010) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997)). To answer this question, the Court must “probe behind the pleadings.” Wal-Mart, 131 S.Ct. at 2551 (citation and internal quotation marks omitted). The plaintiff must “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426 , 185 L.Ed.2d 515 (2013).
*503 1. Rule 23(a) Prerequisites
a. Numerosity
A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ.P. 23(a)(1). This requires the Court to consider “specific facts of each case and imposes no absolute limitations.” General Tel. Co. v. EEOC, 446 U.S. 318, 330 , 100 S.Ct. 1698 , 64 L.Ed.2d 319 (1980). Courts interpreting the numerosity requirement have identified a variety of factors relevant to whether joinder of all class members would be impracticable.
Though different courts label and group the considerations differently, they include: (1) the number of individual class members; (2) the ease of identifying and contacting class members; (3) the geographical spread of class members; and (4) the ability and willingness of individual members to bring claims, as affected by their financial resources, the size of the claims, and their fear of retaliation in light of an ongoing relationship with the defendant.
Twegbe v. Pharmaca Integrative Pharm., Inc., 2013 WL 3802807 , 2013 U.S. Dist. LEXIS 100067 (N.D.Cal. July 17, 2013); see also 7A Wright et al., Federal Practice & Procedure § 1762 (3d ed.); McLaughlin, McLaughlin on Class Actions § 4:6; Rubinstein et al., Newberg on Class Actions § 3:11.
b. Commonality
Rule 23(a) requires “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). This requirement has been construed permissively; not all questions of law and fact need to be common. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998). “However, it is insufficient to merely allege any common question.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir.2011).
The Court granted Plaintiffs certification motion on April 19, 2011. Subsequently, the Supreme Court issued its decision in Wal-Mart Stores v. Dukes, — U.S. —, 131 S. Ct. 2541 , 180 L.Ed.2d 374 (2011). Defendants assert that Wal-Mart, along with recent Ninth Circuit cases including Marlo v. UPS, Inc., 639 F.3d 942, 944 (9th Cir.2011) and Wang v. Chinese Daily News, 737 F.3d 538 (9th Cir.2013) require the Court to reexamine certification in this ease.
In Wal-Mart, the Supreme Court “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.” Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 957 (9th Cir.2013); (quoting Wal-Mart, 131 S.Ct. at 2551 ) (internal alteration omitted); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir.2012).
“[T]he 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.’ ” Abdullah, 731 F.3d at 957 (citing Wal-Mart, 131 S.Ct. at 2551 .). “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.’ ” Abdullah, 731 F.3d at 957 (citing Mazza, 666 F.3d at 589 ) (emphasis in original).
c. Typicality
The typicality requirement demands that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R.Civ.P. 23(a)(3). Under Rule 23(a)(3)’s permissive standard, “representative claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020 . Typicality is generally satisfied when “each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir.2010).
Furthermore “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-Mart Stores, Inc., 131 S.Ct. at 2551 n. 5. The Supreme Court explained how the elements overlap:
Both serve as guideposts for determining whether under the particular eircum- *504 stances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequaey-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.
Id. (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-158, n. 13 , 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982)).
d. Fair and Adequate Representation
Absentee class members must be adequately represented for judgment to be binding upon them. Hansberry v. Lee, 311 U.S. 32, 42-43 , 61 S.Ct. 115 , 85 L.Ed. 22 (1940). Accordingly, this requirement is satisfied if the “representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Here, Defendants do not challenge whether the class representatives adequately represent the interests of the class members.
2. Rule 23(b)(3) Certification
If an action meets the prerequisites of Rule 23(a), the party seeking class certification must show the action is appropriate under Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997). Plaintiffs propose certification under Rule 23(b)(3).
Class certification under Rule 23(b)(3) is an “adventuresome innovation,” and allows for class certification in cases “in which class-action treatment is not clearly called for as it is in Rule 23(b)(1) and (b)(2) situations.” Amchem Prods., 521 U.S. at 615 , 117 S.Ct. 2231 . Thus, a class is maintainable under Rule 23(b)(3) where “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” and where “a class action is superior to other available methods for fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 521 U.S. at 623 , 117 S.Ct. 2231 ; Hanlon, 150 F.3d at 1022 . Where the issues of a case “require the separate adjudication of each class member’s individual claim or defense, a Rule 23(b)(3) action would be inappropriate.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 , 1189 (9th Cir.2001).
3. Burden of Proof and Evidentiary Submissions
Parties seeking class certification bear the burden of demonstrating that each element of Rule 23 is satisfied, and “must affirmatively demonstrate ... compliance with the Rule.” Wal-Mart Stores, 131 S.Ct. at 2551 ; Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308 (9th Cir.1977). The Court must conduct a “rigorous analysis,” which may require it “to probe behind the pleadings before coming to rest on the certification question.” Wal-Mart Stores, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 160-61 , 102 S.Ct. 2364 ). The Court has an affirmative duty to consider the merits of an action “to the extent that they overlap with class certification issues.” Ellis, 657 F.3d at 981 (“a district court must consider the merits if they overlap with the Rule 23(a) requirements”) (citing Wal-Mart Stores, 131 S.Ct. at 2551-52 ; Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.1992)). As a result, the Court may consider material evidence submitted by the parties to determine Rule 23 requirements are satisfied. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir.1975).
IV. EVIDENTIARY OBJECTIONS
While the Court may need to delve into the merits, the inquiry is solely for the purpose of determining if certification is proper under Rule 23. Wal-Mart Stores, 131 S.Ct. at 2552 n. 6. Thus, while the Court shall discuss in detail below the parties presentation of conflicting evidence, the analysis of the evidence is merely to determine issues related to certification. The Court, in reviewing declarations submitted by the parties, is not a position to finally determine the credibility of any given declarant or his or her claim. The Court’s focus is on determining whether *505 Plaintiffs have met the burden established under Rule 23.
In this vein, each side has alleged bias, and hence incredibility, on the part of the declar-ants providing declarations on behalf of the other side. For example, Plaintiffs present declarations of farmworkers stating that they were required to meet with investigators or attorneys working for Defendants, that they received money to sign declarations, and that they signed inaccurate declarations out of fear’ doing otherwise would upset their employers. (See Perero Decl., Exs. B-J.) On the other hand, Employers assert that Plaintiffs used labor unions to influence the opinion of the farmworkers. (Bangi Mot. for Decert. at 18, ECF No. 273-1.) The Court is not in a position to ultimately determine the credibility of each of these witnesses’ statements based solely on examination of the anecdotal evidence presented and will not do so. (On the other hand, the merits determination necessarily will involve some weighing of conflicting claims and evidence. For example, Plaintiffs claim some field workers were required to engage in uncompensated work. Defendant’s claim the workers were prohibits ed from doing uncompensated work. The Court in the course of its merits examination is going to have to make some overall evaluation as to which of these claims is more likely true, and it will do so.)
Plaintiffs also filed objections to the declarations and evidence produced in support of Defendants’ motions for decertification. (See Objections, ECF No. 287-291.) Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974) (The class certification procedure “is not accompanied by the traditional rules and procedures applicable to civil trials.”). At the class certification stage, “the court makes no findings of fact and announces no ultimate conclusions on Plaintiffs’ claims.” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D.Cal.2011) (quoting Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 616 (C.D.Cal.2008)). Therefore, the Court may consider inadmissible evidence at this stage. Keilholtz v. Lennox Hearth Prods., Inc., 268 F.R.D. 330 , 337 n. 3 (N.D.Cal.2010). “The court need not address the ultimate admissibility of the parties’ proffered exhibits, documents and testimony at this stage, and may consider them where necessary for resolution of the [Motion for Class Certification].” Alonzo, 275 F.R.D. at 519 ; Waine-Golston v. Time Warner Entertainment-Advance/New House P’ship, 2012 U.S. Dist. LEXIS 179611 , 2012 WL 6591610 , *9 (S.D.Cal. Dec. 18, 2012). The Court finds that the same evidentiary concerns apply to decertification motions. Accordingly, the Court overrules Plaintiffs’ evidentiary objections. It shall review all the evidence presented, whether admissible or not.
V. DEFENDANTS’ CONTENTIONS REGARDING CLASS DECERTIFICATION
Defendants present several arguments as to why the motions for decertification should be granted. First, Defendants assert that Plaintiffs fail to meet the commonality requirements as set forth in Wal-Mart. Defendants contend that “[w]hile ‘a common nucleus of operative facts’ may have been enough at the time of the Court’s certification order, Wal-Mart requires that there be common answers that will resolve issues common to the class ‘in one stroke.’ ” (Delano Farms Mot. To Decert., ECF No. 275 at 10.)
Second, Defendants argue that under WalMart and Marlo v. United Parcel Service, Inc., 639 F.3d 942, 944 (9th Cir.2011), it is not permissible to allow Plaintiffs to rely on representative testimony where there is no reliable means to extrapolate the testimony to the entire class.
Based on these themes, Delano Farms alleges that in the absence of a policy or practice affecting the class as a whole, Plaintiffs have not established commonality under Rule 23(a). Furthermore, Delano Farms alleges that even where there is evidence of violations, the violations “describe a wide variety of practices, from crew to crew and within the same crews” and require individualized inquiries. For example, for pre-shift work claims, Delano Farms asserts that even when there are violations, the amount of time each member worked is based on the class *506 members’ anecdotal evidence. Likewise for tool claims, Delano Farms asserts that variation exists because some members were provided tools, others chose to purchase their own tools, and others were provided no tools. (ECF No. 275 at 21-22.) Based on the same arguments, Defendants also assert that questions affecting individual members predominate, making certification inappropriate under Rule 23(b)(3).
Finally, Delano Farms asserts that the members of the class are not ascertainable because not all employees suffered violations, and without improperly extrapolating from samples of class members, it would not be possible to determine which employees should be in the class. As an example, Delano Farms asserts that it would not be possible to determine which employees worked early, and if the class included members who did not work early, they would be unfairly compensated, while those who did work early would be undercompensated. (ECF No. 275 at 23-25.)
Employers present similar arguments in support of decertification. Specifically, Employers assert that Plaintiffs cannot establish commonality because of variations in each of the subclasses regarding whether any violation occurred and the severity of the violations, if any. Employers focus on the variations in violations between worker crews supervised by different foreman.
VI. PLAINTIFFS’ CONTENTIONS REGARDING CLASS DECERTIFICATION
Plaintiffs argue that Defendants have used the present motions for class decertification to present substantially the same evidence and re-argue the issues raised in certifying the class. Plaintiffs contend that new case-law, including Wal-Mart, does not undermine the original finding granting certification.
VII. ANALYSIS
A. RULE 23(a) REQUIREMENTS 1. Numerosity
a. The Court’s Previous Findings
In certifying the class, the Court previously found the following:
Here, plaintiffs allege that the total number of potential members is near 14,000 persons. The Employers do not dispute numerosity. Therefore, the requirement of numerosity has been met.
Arrendondo v. Delano Farms Co., 2011 WL 1486612 , at *6-7, 2011 U.S. Dist. LEXIS 44134 , at *18.
b. Current Findings
The Court previously found that Plaintiffs had alleged there were nearly 14,000 potential class members. As Employers did not dispute numerosity, the Court found the requirement was met. Arrendondo, 2011 WL 1486612 , at *6-7, 2011 U.S. Dist. LEXIS 44134 , at *18. Again Employers do not challenge the numerosity requirement in the instant motions for decertification. If anything, Employers allege that the class might consist of nearly ten thousand more employees than previously alleged by Plaintiff. (See T & R Bangi Opp’n at 24 [claiming that 23,766 crew members worked at Delano Farms]; see also Ward Deck at ¶ 29 [“The class, as I understand it, may consist of approximately 23,756 individuals.”].)
There is no reason to question the Court’s prior holding. The Court again finds that the numerosity requirement is met.
2. Commonality
a. The Court’s Previous Findings
(A) Summary of Evidence in Support of and Contrary to Commonality
Here, plaintiffs present three kinds of evidence in support of commonality: (a) anecdotal evidence from class members as to their experience with wage and hour violations, (b) statistical evidence from expert Kenneth Creal, and (3) evidence disputing that defendants have company wide policies against wage and hour violations. Defendants present two kinds of contrary evidence: (a) anecdotal evidence from current employees, supervisors and foremen, who testify as to the absence of wage and hour violations, and (b) company wide polices against wage and hour violations. Defendants challenge whether plaintiffs have shown “commonality.” Defendants *507 offer purported “contradictory” evidence that there is no class wide policy of failure to pay wages, reporting time pay, failure to provide meal and rest breaks, and failure to reimburse expenses.
Here, each party has presented substantial evidence in support of their positions. In support of this motion to certify the class, plaintiffs submit sixty-three (63) declarations and deposition testimony from proposed class members who worked in 28 different crews for the Employers. (See Doc. 75-3.) Each of plaintiffs’ submitted declarations provides the following kinds of testimony: statement of the year/seasons that the employee worked for Employers; how many days per week he/she worked; payment scale; equipment purchased, if any; whether the employee was required to report to work before the start time; what activities the employee engaged in before or after start time; and estimates of the time the employee worked off-the-clock. (See e.g., Doc. 75-4, Rima Arceo Decl. Exh. 11; Magdaleno Castaneda Decl. Exh. 18; Marlo Marelos Decl. Exh. 49.) Each of plaintiffs’ declarants states that they were required to work before official start-time and after official end-time. (The amount of time fluctuated generally between 15-30 minutes before and after official start time.) For instance, Rodolfo Gomez testifies that during pre-harvest and harvest, “I was required to arrive at the jobsite approximately 15 before the official start time.” (Doc. 75-7, Rodolfo Gomez Decl. ¶ 6-5; Exh. 34.) Each declarant further states that the declarant purchased tools to do the work because if the Employers tools were provided, the tools were so inferior the work could not be performed. For instance, Estela Izazaga testifies that “I was required to provide my own tools and equipment that I needed for my job. The tools and equipment that I was required [*24] to take to my job were picking shears that cost me $10.00 and a holster that cost me $7.00.” (See e.g., Doe. 75-4, Estala Izazaga Deck ¶ 5, Exh. 43.)
Employers also present some 89 declar-ants who testify the opposite of plaintiffs’ declarants; that they were not subject to wage and hour violations. (Doc. 76.) Each declarant states: the declarant is a current employee; that he/she is required to attend “eseuelita,” but is paid for that time; he/she is never required to perform work off-the-clock; he/she is never permitted to do work before the beginning of the shift or after the shift ends; he/she is never required to work at home; he/she is provided all the tools needed to do the job and the tools are adequate; and he/she is provided with all meals and rest periods. For instance, Jose Bermudes testifies that he is “never required to do work after my shift has ended,” and is “never required to do work at home.” (Doc. 76-1, Jose Bermudes Decl. ¶ 4, 5, Exh. 12.) Marta Lucio states that “I am required to attend ‘eseuelita’ almost every morning at the beginning of my shift ... It is always held while employees are on the clock and I am always paid the time I spend in school.” (Doc. 76-3, Marta Lucio Decl. ¶ 2, Exh. 50.) The declarations state that there have been no violations.
(B) Conflicting Evidence Warrants Denial of Certification
Generally, this kind of conflicting evidentiary support may preclude certification. For instance, in Garcia v. Sun Pacific Farming Coop., 2008 U.S. Dist. LEXIS 111969 , 2008 WL 2073979 (E.D.Cal., May 14, 2008) (O’Neill, J.), aff'd, 359 Fed.Appx. 724 (9th Cir.2009), this Court held that conflicting and contrary evidence submitted by each side did not establish a common wage and hour practice. Like this case, Garcia was a AWPA case in which plaintiffs challenged employment practices of working off-the-clock, failure to permit meal and rest periods and failure to reimburse for tool expenses. Plaintiffs presented 7 employee declarations in which they claimed the employment policies had been violated as to them. In opposition to class certification, defendants presented 33 declarations of employees who testified that the employees did not work off-the-clock, were paid minimum wage, received meal and rest periods and were provided with necessary tools and equipment. 2008 U.S. Dist. LEXIS 111969 , 2008 WL 2073979 at *3-4. This Court held that due to the conflicting anecdotal evidence dis *508 puting whether common policies existed, there was inconsistent application of the wage and hour laws among the employees. “The evidence before this Court demonstrates significant differences between the crews and individuals and no commonality. Plaintiff is therefore unable to demonstrate commonality.” 2008 U.S. Dist. LEXIS 111969 , 2008 WL 2073979 *11.
Similarly, in Washington v. Joe’s Crab Shack, 271 F.R.D. 629 (N.D.Cal.2010), the court denied class certification based upon conflicting anecdotal evidence of discriminatory practices. In Joe’s Crab Shack , plaintiff conceded that defendant’s written policies required payment of overtime, meal and rest breaks, and prohibited “off the clock” work, but claimed that those written policies were simply “ignored.” Plaintiff introduced anecdotal evidence by his own declaration and declarations of six other employees. This evidence was contradicted by evidence presented by defendant. Washington v. Joe’s Crab Shack, 271 F.R.D. at 637 . The court, nonetheless, found that this anecdotal evidence was sufficient for “common issues to satisfy the requirement of Rule 23(a)(3).” The Court, however, found that the evidence was not “typical of the claims and defenses of the class.” “The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” Joe’s Crab Shack, 271 F.R.D. at 629 . The Court stated that the claims were not eo extensive of the claims of proposed class members who submitted class members who said they had not worked off-the-clock or where denied breaks and overtime.
(C) The Evidence is Not Conflicting
The evidence submitted in this case is different from that submitted in Garcia or Joe’s Crab Shack . Plaintiffs note that none of defendants’ declarants specifies any time period for which the testimony is applicable. From the Court’s review of the defendants’ declarations, the Court notes the absence of any time period of the declarant’s employment or the time period for which their testimony applies. Each declarant states, “I am currently an employee of T & R Bangi’s Agricultural Services.” (See Doc. 76, declarations Exh. 1-89.) Each declarant is a current employee, but gives no evidence of the duration of their employment or the time period for which the testimony applies. The implication is that because the declarants are current employees, and the declarants’ declarations are worded in the present tense, the testimony applies for the current employment practices. (See Doc. 71-1, Exh. 1 (“During the school, the foreman gives us directions and talks about safety.”); Exh. 17 (“As an employee of T & R Bangi, I attend “escuelita” every morning at the beginning of my shift.”); Exh. 77 (“If I arrive at the job site early, I am not required to being work.”)). The declarants do not provide sufficient evidence of labor practices during any period other than the current time period.
In their sur-reply, defendants argue absence of a time period in the declarations is irrelevant because “never means never.” Defendants argue that certain of their declarations state that employees are “never” required to work off-the-clock, or that the employee is “never” required to take trays home. (Doc. 81, Defendants’ Sur-reply, p. 3.) Defendants argue that if an employee worked for 10 years for defendants, and the declaration says the employee “never” worked off-the-clock, that statement applies for the 10 year employment history. (Doc. 81, Defendants’ Sur-reply, p. 4.) Defendants submit additional declarations in connection with their sur-reply which state that “never” means the declarants’ entire employment history. (Doc. 81, Defendants’ Sur-reply, p. 4.)
The difficulty with the court’s accepting fully defendants’ argument that “never means never” is that the declarations do not state a time period of employment. For instance, declarant Felipe Alvarez states “I am currently an employee of T & R Bangi’s.” (Doc. 76-1, Alvarez Decl., Exh. 5.) Nowhere in the declaration is the time period of employment referenced. All of the other declarants similarly state they are current employees, but without specifying a time period of employment. *509 (See Doc. 76-1 through 76-4, Exh. 69 (“I am a current employee ...”).) A few surreply declarations include employment dates, but these are only a minor number of declarants and are mostly supervisory position declarants. (Doc. 81-2 and 81-3, declarations.) The Court, therefore, cannot make the evidentiary leap that a current employee has been an employee for any specific period of time.
Plaintiffs have presented evidence explaining why current labor practices are different from former labor practices. The labor practices changed in 2010. In their response to defendants’ sur-reply, plaintiffs stand by that position — the policies changed in 2010. [FN4] Plaintiffs present evidence that in 2010, Employers changed the practice from requiring pre-shift and post-shift work, to prohibiting pre-shift and post-shift work. {See Doc. 77, Reply p. 6 n. 9) Plaintiffs present evidence that in 2010, Employers changed the practice of requiring work be taken home (to clean trays), to prohibiting work being taken home. {See Doc. 77, Reply, p. 6 n. 11 (citing to defendants’ declarants which state, “I use to take my trays home to wash.”).) Plaintiffs present evidence that in 2010, Employers changed the practice of not providing quality tools for the work. [FN5] Thus, plaintiff has explained or offered a reasonable explanation of why, what appears to be conflicting declarant testimony, is not conflicting at all.
In their sur-reply, defendants argue that the current policies always have been in effect. The policies did not change in 2010. In their sur-reply, defendants present declarations from 28 declarants who say that the policies applied throughout the entirety of their employment. These declarations give a beginning and ending year of employment. (See e.g., Doc. 81-2, Alvarez Decl., Exh. 1 (stating term of employment); Castro Decl. Exh. 7 (stating term of employment).) Defendants argue that these 28 employees signed supplemental declarations in which the declarants clarify that their statements applied to the entire employment with Employers — they “never” had to work pre- or post-shift and they “always” were provided with tools. (See Doc. 81, Sur-reply p. 4.)
In the response to the sur-reply, plaintiffs parse out the inconsistencies in the sur-reply declarations. Plaintiff note that only 26 of the 28 reference whether they are “required” to work off-the-eloek, but are entirely silent on whether the defendants, nonetheless, “permitted” members of the class to perform pre- or post-shift work. (Doc. 83, Plaintiffs Response p. 8.) Plaintiffs note that defendants cite to only 10 of the 28 declarations for defendants’ proposition that employees are “never required to work off-the-eloek.” Plaintiffs note that whether the declarants were “required” to work off-the-cloek is inadequate to address whether the “workers are owed wages for time they were suffered or permitted to work, whether or not required to do so.” (Doc. 83, Plaintiffs Response p. 9.)
The Court agrees with plaintiffs’ reply and response to the sur-reply, that plaintiffs evidence is a more accurate representation of past labor practices. Defendants’ declarants represent only about 9 different crews, and arguably, mostly for the current labor practices. (See Doc. 77, Reply *510 p. 6.) Plaintiffs present declarants spanning 28 different crews. As plaintiffs’ reply and response note, and from the court’s review of the numerous declarations, over 30 of defendants’ declarants fail to identify any crew for which they are employed. Moreover, some of defendants’ declarants suggest activity which may encompass past violations of wage and hour laws. For instance, some of defendants’ declarations state that the declarants worked pre-shift without pay. (See e.g., Alfredo Aguilar Deck Exh. 1, (“The harvest season is the only time pre-shift work can be done.”); Doc. 76-2, Ortencia Diaz (“I use to begin my work early, but now if I arrive at the job site early, I do not.”).) Some of defendants’ declarations state that the declarants use to take trays home to clean. (Esperanza Alvarez Deck (“A few years ago I use to take my trays home to clean them.”).) The presence of possible past violations, as acknowledged by some of defendants’ declarants demonstrate that the “stringent policies” adopted by defendants may not have been followed as defendants attest. Thus, the evidence plaintiffs present appears to be a more accurate representation of past practices, and defendants’ declarants do not. [FN6]
Here, plaintiffs seek to certify a class for the time period from 3 or 4 years from the filing of the complaint. The complaint was filed on July 17, 2009. Plaintiffs have presented evidence to the court for past potential violations of wage and labor laws. Defendants evidence is varying and contradictory and indicates that some violations existed as to past practices. Thus, any contradictory evidence between plaintiffs’ evidence and defendants’ evidence does not show lack of commonality. The common question is whether the wages are owed for off-the-cloek work performed, whether a policy permitted uncompensated, even if not “required,” off-the-cloek work. This is a sufficient common question to justify certification.
(D) Written Policies of Defendants
Employers argue that they have written policies which demonstrate that Employers are adhering to the law. Employers argue that they have the “Tool Agreement” [FN7] and the “Right/Exceptions” [FN8] policies which are located in the main office and at every crew location. In their sur-reply, defendants present the testimony of Marife Villar the Safety Manager for T & R Bangi. Ms. Villar’s job is to ensure that foremen are given copies of the company policies and that foreman have the crews sign acknowledgment forms. She keep a log where she notes that policies are properly posted. [FN9] Plaintiffs dispute that posting of the policies and also note that had employees signed acknowledgments of these policies, defendant would have and should have provided them as evidentiary support.
Here, defendants present evidence that they maintain written policies which are contrary to the policies plaintiff allege exist in the field. (See generally Bangi Decl.; Neville Decl.) Defendants maintain policies against working “off-the-cloek” and for re- *511 imbui’sement for tool expense. Defendants present evidence that the foreman are trained on these policies and are instructed that no off-the-cloek work is permitted.
The Court, however, agrees with plaintiffs that these two policies do not conflict necessarily with plaintiffs’ position. Plaintiffs’ position is that tools were not provided, or if provided, the tools were inadequate. To do the job for which they were paid, employees purchased their own tools and were not reimbursed. [FN10] The evidence submitted by both sides is supportive of violations of the off-the-elock work policy and the tool policy. As shown above, declarants for both plaintiffs and defendants have stated they have worked off-the-clock and have bought their own tools because the Employer either did not provide tools or the tools were inadequate. Thus, there is sufficient evidence that the policies were not followed. The presence of what appears to be wholesale workers purchasing tools to perform necessary work is a common question.
Further, the evidence does not persuade that the policies were given to the employees. Plaintiffs offer evidence that the policies were not provided. For instance, Sabas Arredondo testified that he was not given a handbook and when he was asked to sign documents, the documents were typically in English, which he does not read. He was told to just sign. (See, e.g., Arredondo Depo. 17:7-17, 20:17-22:15; R. Landeros Depo. p. 29:12-32.) The evidence presented by defendants does not include any signed receipts of written policies. This Court, in conducting its “rigorous analysis” considers the evidence presented and mentioned in testimony and actual and potential corroborating evidence. Even if plaintiffs’ theory is ultimately unsuccessful, application of the written policy language in the work environment presents a question common to the class.
(E) Expert Opinion
In addition to the anecdotal evidence plaintiffs present, they also offer the declaration of Mr. Kenneth L. Creal, a Certified Public Accountant. He has been an CPA since 1978 and has been retained as an expert for plaintiffs. Mr. Creal offers testimony which summarizes the 63 different declarations of putative class members who provided declarations by plaintiff. He notes that the 63 class members have worked for 28 different foremen during the remedial period. (Doc. 75-2, Creal Decl. ¶ 6.) He then summarizes their testimony as to their complaints for working off-theelock, and buying tools. Mr. Creal provides as “statistical analysis” of the percentage of declarants who make certain claims. For instance, Mr. Creal states that 98% of the declarants make a statement that they worked prior to the recorded starts time of their shift and where not paid. (Doc. 75-2, Creal Decl. ¶ 8.) Mr. Creal offers a table which summarizes the statements of violations and assigns a percentage to each statement. He also offers an opinion as to the appropriateness of the time keeping methods. For instance, he reviewed daily time sheets and notes that (1) foremen would only write a one time entry across the page noting that each employee was credited to have started and ended at the exact same time, (2) foremen would fail to list time started or stopped, (3) foremen would not make note of times “in” and times “out,” and (4) foremen would not make any time entries. (Doc. 75-2, Creal Decl. ¶ 17-21.) Mr. Creal offers an opinion that the time-keeping methods do not comply with requirements the California Wage Orders. (Doc. 75-2, Creal Decl. ¶ 22.)
Defendants object to Mr. Creal’s testimony on numerous bases. Defendants object that Mr. Creal is a CPA, not an expert on labor practices and cannot offer opinions on wage and hour laws and violations. They also object that the statistics provided by Mr. Creal statistically are insignificant because the declarants studied do not *512 encompass the other 89 declarations provided by defendants in opposition to the motion. (See Doc. 76-76, Objection p. 1.) In those declarations, defendants stated that the employees did not work off-the-clock without pay and were not required to provide their own tools. Defendants object because their declarants offer testimony that no violations of wage and hour laws occurred. Defendants object that various statements offer legal conclusions, are improper assumptions and lack foundation, among other objections. It is well established that plaintiffs may demonstrate commonality by presenting statistical evidence, which survives a “rigorous analysis,” sufficient to raise a common question concerning whether there is class-wide discrimination. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 , 159 n. 15, 161, 102 S.Ct. 2364 , 72 L.Ed.2d 740 (1982).
At this stage in the litigation, “robust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is ‘useful in evaluating whether class certification requirements have been met.’” Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 635 (N.D.Cal.2007). In Ellis v. Costco, plaintiffs allege that Costco’s promotion system has a disparate impact on female employees, that Costco’s management discriminates against women in promotions. The plaintiffs offered an expert in statistical analyses as to potential gender discrimination. The expert provided a statistical benchmarking analyses comparing defendants’ gender management positions to other retailers and also a regression analysis based upon a feeder pool of qualified female candidates. The court found that the expert declaration, while contradicted by defendant’s experts, was “strong enough to establish commonality.”
Here, unlike the experts in Ellis v. Costco, Mr. Creal offers a statistical evaluation solely of the declarations submitted by plaintiffs. He does not consider market or other information in assigning the statistical probability of certain conduct. Further, he does not consider the declarations submitted by defendants in which each declarant said that no violations of wage and hour law were imposed upon them. He extrapolates statistically based upon a limited pool of information, but offers no foundation as to why such extrapolation would be warranted. This information is not assistive of the issue of commonality. Further, the Court does not reach the issue of whether Mr. Creal is qualified to opine on issues of labor practices and labor violations.
Arrendondo, 2011 WL 1486612 , at *6-14, 2011 U.S. Dist. LEXIS 44134 , at *18-43.
b. Review of Case Law Presented by Defendants
Clearly, the Wal-Mart decision is a primary impetus and basis for Defendants’ motions for decertification. Defendants assert that significant variation in treatment of class members prevents Plaintiffs from showing that the entire class was subject to the same employment practices. Based on the alleged variations, Defendants claim that Plaintiffs fail to meet the commonality requirement which “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.” Abdul-lah v. U.S. Sec. Assocs., 731 F.3d 952, 957 (9th Cir.2013).
Delano Farms contends that Plaintiffs’ argument is the same as that made by the plaintiffs, and rejected by the Supreme Court, in WaL-Mart: “that a class can be certified to adjudicate the failure of Defendant’s policies to prevent what they allege were widespread unlawful practices.” (Delano Farms Reply at 4 (internal citation omitted).) Due to variations of employment practices, Defendant alleges that it is impossible to establish answers regarding pre-shift work “in one stroke.” (Id.)
Defendants also rely upon Wang v. Chinese Daily News, a case in which the Supreme Court and Ninth Circuit remanded a class action wage and hour violations claim to the district court to determine commonality under Rule 23(a)(2) in light of Wal-Mart. 737 F.3d 538, 544 (9th Cir.2013). In discussing the commonality standard, the Wang court reiterated that “[i]f there is no evidence *513 that the entire class was subject to the same allegedly discriminatory practice, there is no question common to the class.” Id. at 544 (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir.2011)). Here, the question is not discrimination, but whether the entire class was subject to the same allegedly unlawful wage and hour practice.
Plaintiffs argue that Wal-Mart does not control certification in this matter because Wal-Mart applied to a class several magnitudes greater (1.5 million employees working in several thousand stores) and that it involved a gender discrimination case, rather than wage and hour violations. (See Opp’n at 21-22.) However, neither Wal-Mart nor Ellis gave any indication that their decisions were based on the fact that the substantive claims involved employment discrimination. On the contrary, both cases plainly emphasized the obligation of the trial court to conduct a “rigorous analysis” to insure that Rule 23’s commonality requirement was met. This principle applies in all cases, not just discrimination cases. As the Supreme Court remanded Wang , a wage and hour case brought under the Fair Labor Standards Act and the California Labor Code, for further consideration in light of Wal-Mart, it is clear that Wal-Mart applies to wage and hour cases just as it would apply to any other class action lawsuit. Chinese Daily News, Inc. v. Wang, — U.S. —, 132 S.Ct. 74 , 181 L.Ed.2d 1 (2011); see also York v. Starbucks Corp., 2011 WL 8199987 , *23, 2011 U.S. Dist. LEXIS 155682 , *68-69 (C.D.Cal. Nov. 23, 2011). However, beyond ordering the ease remanded, neither the Supreme Court nor the Ninth Circuit provides guidance regarding how wage and hour violations should be analyzed under the Wal-Mart standard.
The Court here concludes that while Wal-Mart applies, portions of the decision were specific to the discrimination claim and may not be applicable to other claims. For example, the Supreme Court explained:
Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor.
in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 , 104 S.Ct. 2794 , 81 L.Ed.2d 718 (1984). Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
Wal-Mart Stores, Inc., 131 S.Ct. 2541 at 2551-52 (emphasis in original). This Court is bound to apply “rigorous analysis” and ensure that the common contention can be determined in one stroke as prescribed by the Supreme Court in Wal-Mart. However, issues relating to Title VII discrimination claims (such as the reason for making employment decisions, establishing the existence of discriminatory policies, or relying on the discretion of lower level supervisors) may not be relevant to Plaintiffs’ claims.
Defendants, in attempting to argue that there is not a common question that affects the class as a whole, compare the instant case to several other wage and hour class action decisions in which certification was denied or the class was decertified. See Cole v. CRST, Inc., 2012 U.S. Dist. LEXIS 144944 , 2012 WL 4479237 (C.D.Cal. Sept. 27, 2012), Ordonez v. Radio Shack, Inc., 2013 U.S. Dist. LEXIS 7868 , 2013 WL 210223 (C.D.Cal. Jan. 17, 2013); Cortez v. Best Buy Stores, LP, 2012 U.S. Dist. LEXIS 15190 , 2012 WL 255345 (C.D.Cal. Jan. 25, 2012); Boelk v. AT & T Teleholdings, Inc., 2013 U.S. Dist. LEXIS 20606 , 2013 WL 261265 (W.D.Wis. Jan. 10, 2013); Bolden v. Walsh Const. Co., 688 F.3d 893, 896-98 (7th Cir. 2012); York v. Starbucks Corp., 2011 WL 8199987 , at *27 (C.D.Cal. Nov. 23, 2011); Rosales v. El Rancho Farms, 2012 U.S. Dist. LEXIS 11069 , 2012 WL 292977 (E.D.Cal. Jan. 31, 2012); and Rojas v. Marko Zanino- *514 vich, Inc., 2012 U.S. Dist. LEXIS 51787 , 2012 WL 1232273 (E.D.Cal. April 12, 2012).
Before reviewing the issues presented in these eases, the Court notes, and emphasizes, that certification is a highly fact-specific inquiry. Even if similar claims are presented in different cases, the outcome of each will hinge on the evidence of a common unlawful practice presented by the Plaintiffs in the particular case at issue.
Defendants assert that the claims here are akin to those in Cole v. CRST, Inc. in which a class of track drivers was decertified because there was no proof of a general policy that defendant failed to pay minimum wage to drivers. 2012 WL 4479237 , *8, 2012 U.S. Dist. LEXIS 144944 , *22 (C.D.Cal. Sept. 27, 2012). The drivers were paid by the mile, and plaintiffs could not show that the payment policy was unlawful. Additionally, individual determinations of each driver’s compensation were required just to determine if there was a viable liability claim. In the instant case the mere fact that a worker performed uncompensated work and the employer knew or should have known of it affoi’ds a basis for liability. Here, the analysis of potential liability involves much simpler common factual questions than in Cole .
In Ordonez v. Radio Shack, Inc., the plaintiffs alleged that to control overtime costs, store managers were forced to pressure sales associates to work off-the-clock when making bank deposits or picking up and dropping off sales merchandise at other stores. 2013 WL 210223 , 2013 U.S. Dist. LEXIS 7868 . The Court found that the off-the-clock subclass lacked commonality as the violations, if any, were “a product of the vagaries of the store an employee worked in, the time of year, or the manager who was in charge.” Id. Further, the court relied on the fact that defendant maintained a lawful policy prohibiting off-the-clock work and that it paid more than 57,000 hours of over-time during the proposed class period. Id. While violations may have occurred, the court’s holding was premised on plaintiffs failure to present sufficient evidence that violations were based on a common policy. In the present ease, there is evidence of common violations within the specific subclasses. Further, unlike Ordonez , Defendants have not provided evidence that Plaintiffs were given additional pay for extra time worked.
In Cortez v. Best Buy Stores, LP, the court held that for class treatment to be appropriate, plaintiffs would either have to show that oral requests to employees to perform uncompensated work were standardized or that some common method of proof could establish that such conduct occurred. 2012 WL 255345 , 2012 U.S. Dist. LEXIS 15190 . Plaintiffs alleged that computer records could provide common proof of editing to cover up uncompensated work. The Court rejected that argument because it concluded that edits to time records could just as easily have been to correct errors and make them accurate. Id. Those facts and that conclusion offer us no guidance here.
Commonality was lacking in Boelk v. AT & T Teleholdings, Inc. There the evidence showed that multiple varying circumstances determined whether meal break restrictions foreclosed a technician’s use of his break for his own purposes and that the “differences between the technicians’ experiences and supervisor discretion make it impossible to generate common answers on a class wide basis.” 2013 WL 261265 , 2013 U.S. Dist. LEXIS 20606 (W.D.Wis. Jan. 10, 2013). The court noted that the relevant question was “whether the meal break restrictions resulted in field technicians’ engaging in activities that predominantly benefited defendants during their meal breaks.” Boelk, 2013 WL 261265 , at *9-10, 2013 U.S. Dist. LEXIS 20606 , at *25. That inquiry required examination of the particular action engaged in by each plaintiff during the meal break to see if those acts primarily benefited defendants. The inquiry here is much simpler and narrower, namely whether uncompensated work was performed or tool purchases went un-reimbursed. The same distinction may be made between the instant case and Bolden v. Walsh Const. Co. which presented Title VII racial discrimination claims applicable only to certain supervisors and not others. 688 F.3d 893 .
In York v. Starbucks Corp., another fact-specific case, the court held in light of the “strongly worded policy that employees and managers would be disciplined and even ter *515 minated for off-the-clock work, that plaintiffs were required to present evidence of a “systematic corporate-wide practice of forcing employees to work off-the-clock to meet Rule 23’s ‘commonality’ requirement.” 2011 WL 8199987 , at *29-30, 2011 U.S. Dist. LEXIS 155682 , at *86-88. The court found that the factual record did not support such a finding. Id. Plaintiff could not explain why off-the-clock time was not recorded in time logs and she did not show that her managers had any knowledge that she was working off the clock. Id.
Defendants also rely on certification denial decisions from this district involving similar fieldworker claims. In Rosales v. El Rancho Farms, the court found that the evidence of pre-shift work revealed contradictory claims. Significantly, three times as many declarants stated they were not required to work off the clock as those that said they did. 2012 U.S. Dist. LEXIS 11069 , 2012 WL 292977 . Of further note, in the findings and recommendation in both Rosales v. El Rancho Farms and Rojas v. Marko Zaninovich, Inc., the judge compared and contrasted the anecdotal evidence with the evidence presented in this case. 2012 WL 439398 , 2012 U.S. Dist. LEXIS 16043 . The court held that unlike the present tense declarations Defendants originally presented here, defendants’ declarations in Rosales and Rojas applied to the entire period at issue and were of such credibility as to create an evidentiary conflict sufficient to defeat commonality. Rosales, 2011 WL 6153276 , at *25, 2011 U.S. Dist. LEXIS 142779 , at *75-76. Moreover, in Rojas , the court concluded that “whether some employees were required to perform pre-shift work is not a proper question where the class is comprised of all harvest employees.” 2012 WL 439398 , at *28-29, 2012 U.S. Dist. LEXIS 16043 , at *84-86. The subclasses in this ease only apply to employees who per-foi’med uncompensated work or were not compensated for tool purchases, not all employees.
Review of decisions in these and other similar’ cases is almost always enlightening, and it has been here. However, the most enlightened conclusion to which it leads us is that this Court must apply the rigorous commonality test set forth in Wal-Mart to the unique facts set forth by the parties.
c. Evaluation
(1) Pre-shift Work
(a) Review of Evidence
The parties presented extensive evidence in the form of declarations of employees and otherwise in support of and in opposition to the motion for certification. The Court discussed the evidence at length in granting certification. As required, the Court shall look at all the evidence, both old and new, in determining if the pre-shift work subclass should now be decertified.
In support of the motions for decertification, Defendants have presented thirty nine (39) new declarations of workers and foremen. (See Bigelow Decl. at ¶ 4, Ex. OOO. 5 ) Defendants also provide a wide array of evidence and argument in the form of declarations of counsel, supervisory employees of Defendants, and expert witnesses. Plaintiffs, in opposition, present nine declarations of workers who previously provided declarations for Defendants. (Perero Decl., ECF No. 286-1.)
Employers provide a declaration of Michael Johnson in which he provides both new and old declarations in support of decertification. (Johnson Deck, ECF No. 205-3.) First, Employers include declarations from ten employees to attempt to show that Employers’ original declarations, although drafted in the present tense, applied to the entire period that the declarant worked at Delano Farms. With their reply to the motion for certification, Employers then provided ten supplemental declarations setting out the dates when the declarants worked and stating that the original declarations applied to their entire period of employment. (See Johnson Decl. at ¶¶ 2-24.) In an attempt to explain why supplemental declarations were not provided for all of the original declarants, Employers explain that they could not communicate with them (the other 77 declarants) once the class was certified and the declarants became represented by counsel in the action. *516 (See Id. at ¶ 25 . [“we contacted as many declarants as we could with the time we had between the receipt of the opposition and the date the reply was due.”].)
The Court reviewed the ten declarations presented by Employers when it granted class certification. It found them insufficient to show that all of the original declarations applied to the entire period of employment for each employee. The Court based this finding on the fact that most of the declarations did not include employment dates, so it was not possible to determine when each was employed. Further, the supplemental declarations only stated that the class members were not required to perform off the clock work, and remained silent on whether they were permitted to do so. Accordingly, the Court found that Plaintiffs’ evidence was a more accurate representation of past labor practices.
Upon further review of the ten new declarations, two state that they were permitted to do pre-shift work. (See Johnson Decl., Exs. 5, 9. [Rene Lopez states, “However, during the harvest season I sometimes began setting up my packing table before the shift started.” Floriberto Sanchez states, “However, I begin setting up my packing table up before my shift starts if I am going to earn a bonus.”].) Since the supplemental declarations state that that statements in the original declaration “refer to the entire time [the worker has] have been employed by T & R Bangi”, defendants’ own evidence shows that at least these two declarants engaged in preshift work during their entire employment.
For the reasons discussed above, the Court does not find the ten declarations sufficient to rehabilitate the declarations Defendants originally provided in opposition to class certification.
Employers argue that construing “never means never” and “always means always” logically, the declarations show that no violations occurred during the duration of the declarant’s employment. (See Johnson Decl. ¶ 29-30.) The declarations, as provided, remain stated in the present tense. Even assuming that the declarants were employed for the periods of times described in Brash-ears’ spreadsheets, the declarations only state that the declarants were never required to perform off-the-clock work during their employment. However, as this court previously held, the declarations are silent as to whether the class members were permitted to work before the shift. Arrendondo, 2011 WL 1486612 , at *11, 2011 U.S. Dist. LEXIS 44134 , at *32-33. As described below, declarations provided by Employers reflect that potential class members were permitted to do pre-shift work.
Employers next provide seven new declarations from workers who opted out of the class. (See Johnson Decl., Exs. 11-17.) The declarants state that they “decided to opt-out of the class action lawsuit because [they] have not had any problems with Bangi.” (See e.g., Johnson Decl., Ex. 11 at ¶ 6.) That these seven employees did not feel that they had been treated unlawfully by T & R Bangi does not rule out whether they or others were subject to unlawful treatment. Even though the declarations are presented to show that pre-shift work did not occur, two of the new declarations from employees who opted out reflect that they did in fact engage in pre-shift work. (See Id., Ex. 13, ¶ 6 (“Occasionally during the picking season I would set up my table early ...”); Ex. 17, ¶9 (“During the years I worked for T & R Bangi, I sometime started setting up my table before the official start time.”).) This evidence is consistent with the evidence previously provided that a large number of workers engaged in pre-shift work.
Employers also present evidence that certain class members provided inconsistent testimony and that variations in workers’ claims mean individualized analysis is necessary, and hence class certification improper. (See Johnson Decl. ¶¶ 62-111.)
Focusing on the just the allegedly inconsistent testimony, It is not clear that the deposition testimony regarding pre-shift work is inconsistent with statements in the declarations. For example, Employers assert that Froilan Garcia’s deposition testimony shows he was called to work by the foreman at the start time but liked to show up early to set up his table to be ready to start picking as soon as the shift started. Employers characterize this testimony as inconsistent with his declaration that he was required to work *517 early. (Johnson Decl. at ¶ 100, Ex. 23.) Admittedly, the deposition testimony does not state that the foreman required him to be there early. It does say, however, that the foreman ‘wanted’ him there twenty minutes early and that he would arrive and set-up prior to the start of the shift. (Decl. of Froilan Garcia, p. 11:1-6., 25:14-18.) Despite arguable inconsistencies, the deposition testimony does indicate that Garcia was performing uncompensated pre-shift work.
Employers next refer to class member Hilario Gomez who stated in his declaration that he was required to be at work 15-30 minutes early to set-up and attend school. He first testified in his deposition that he was instructed to arrive a half hour early but later testified in the same deposition that the foreman only instructed him to arrive on time. (Johnson Decl. at ¶¶ 101-103.) Reading the deposition testimony in context leaves open a consistent explanation:
Q. So Amadeo told you to show up 30 minutes before the start time?
A. Yes.
Q. Why did he tell you to show up 30 minutes before the start time?
A. I think — well, he would tell us to arrive because he — he was requiring that schedule so that we would all be present.
Q. Okay. So he wanted — he basically said, “Hey, show up early because I want to make sure everybody is here when it’s time to start work”?
A. Yes.
Q. So he basically said, “Hey, we have to start on time”?
A. Yes.
(Id. at Ex. 37.) This creative, leading questioning produced Gomez’s agreement that his foreman “basically” said “Hey, we have to start on time.” It does not truly call into doubt the credibility of his earlier repeated testimony that he was told to show up a half hour early. (Id. at Ex. 37. [citing pp. 16-17 of Gomez’s Decl.]) Employers, to their credit, do point out that Gomez later testified that school started 5-10 minutes before the shift. (Id., Ex. 37 [Gomez Decl., p. 44.]). But even that acknowledgement tends to obscure Gomez’s testimony in significant detail about performing uncompensated work and attending school during the half hour preceding shifts. (See Gomez Decl., pp. 41-45.) The Court finds no clear conflicts in the sworn evidence from Gomez or other reason to challenge the credibility of the evidence presented by him. The same cannot be said of Employers’ efforts to encourage the Court to do otherwise.
Defendant asserts that, contrary to her declaration that she was required to start work early, Estela Izazaga testified she was not told that she had to set up prior to the start of the shift, just that she preferred to do so. (Johnson Decl. at ¶ 105.) The apparent conflict notwithstanding, her statements are quite consistent in showing she performed uncompensated pre-shift work.
Similarly, Employers claim that Lourdes Ramirez’s declaration that she was required to show up twenty minutes early is impeached by her testimony that she was never actually told by her foreman to arrive early. (Johnson Decl. at ¶ 108.) However, not specifically being told to be there early may well have resulted from the facts, as alleged, that she did always arrive early. It does not rule out that her foreman expected her to arrive early or condoned it. (Id. at Ex. 29.)
Finally, T & R Bangi notes that Isaac Munos testified during his deposition that he was required to arrive thirty minutes early and that he had school four days a week during the pruning season. (Id. at ¶ 111, Exs. 32-33.) This testimony appears wholly consistent with his declaration that he was required to arrive a half horn* early and that during the pre-harvest season he had schooling approximately three times a week.
Employers also attempt to contrast the testimony of the above-referenced workers with that of workers Carmen Palacios, Maria Venegas, and Issac Munos who consistently testified that they were required to work early. No such contrast appears clear to the Court.
Employers present the declaration of Michael P. Ward, an economist, who asserts that the evidence does not establish a statistical basis to claim that a common policy or practice applied to the class members. (See Ward Decl., ECF Nos. 273-40, 273-41.) First, Ward notes that the declarations obtained by both parties were obtained on an ad hoc basis, not randomly, and therefore do *518 not enable one to extrapolate statistically and determine the rates of violations of all workers. (See ECF No. 273-40 at ¶ 12.) The Court has no disagreement with this proposition. It is clear that neither the declarations from Plaintiffs nor those from Defendants are randomly obtained. However, that is the evidence the Court has before it, namely nearly uniform declarations from Plaintiffs that the violations did occur and contrasting declarations from Defendants stating that they did not occur. The evidence may have statistical flaws, but it is evidence, and the Court will consider it while keeping its shortcomings in mind.
The majority of Ward’s declaration is focused on whether the declarations and other evidence can be used to determine if there was a common, company-wide policy implemented through the forepersons. (See Ward Decl. at ¶¶ 17-18.) Ward compiled the data provided in the declarations and prepared a table showing the percentage of the workers per foreman crew that alleged each subclass of violation. (See Ward Decl., Table 1, ECF No. 273-40 at 8.). Based on the evidence, Ward concludes that “there is no evidence of a common or systematic policy transmitted by [a given] foreperson” and that “there is no evidence of a common or systematic policy transmitted by the company to all of their forepersons.” (Id. at ¶ 26.) Finally, Ward comments that even if statistics could be used to show that a significant number of the class members suffered a violation, they would not reveal which class members suffered the violation and which did not. (Id. at ¶¶ 27-33.) Ward suggests that the Court thus will end up having to either compensate class members who did not suffer the violation or spend effort to determine which class members were harmed. (Id.)
Employers argue that the anecdotal evidence varies greatly as to whether pre-shift work occurred. This argument relies heavily upon Ward’s above-referenced table showing the percentage of declarants per crew alleging a particular violation. (See Ward Decl. Table 1, ECF No. 273-40 at 8.) At the outset, the court notes that Ward separated claims of uncompensated schooling before the shift with claims of other pre-shift work. (See Id.) However, as noted, uncompensated work can create liability regardless of its nature. Also, here the percent of workers Ward characterizes as presenting claims for schooling are nearly the same as those with claims for other work. Accordingly, the distinction is not relevant to the Court’s analysis.
The Court has considered Employers’ contention that there are wide and conflicting variations in the evidence presented by class members. However, on review and considering the nature and circumstances in which statements were made and recorded and the fact that many reflected simple lay approximation of times spent working, the Court cannot find they reflect significant inconsistencies.
Terri Bangi and Craig Neville previously provided declarations. They now provide revised declarations in support of the motion to decertify. However, the Court finds nothing in the present motions to alter the analysis and reasoning previously relied upon in certifying the class. Both Bangi and Neville state that Employers had policies prohibiting uncompensated work and those policies were to be enforced by the foremen. The Court previously acknowledged evidence that Defendants had such policies in place, but also found that the polices were disregarded. Ar-rendondo, 2011 WL 1486612 , at *11-12 n. 6, *12, 2011 U.S. Dist. LEXIS 44134 , at *34 n. 6, *37-38 (“[D]eclarants for both plaintiffs and defendants have stated they have worked off-the-eloek and have bought their own tools because the Employer either did not provide tools or the tools were inadequate. Thus, there is sufficient evidence that the policies were not followed.” Bangi’s declaration “ ‘contradicted by defendants’ own evidence and evidence presented by plaintiffs.”). Since much of the anecdotal evidence presented is the same, the parties will not be surprised that even with the statements of Bangi and Neville, the evidence shows that the policies were not followed.
To further attempt to rehabilitate their declarations, Employers provide the declaration of David Brashears. (See ECF Nos. 273-9 to 273-13.) Brashears, a certified public accountant, reviewed the employment records of Defendants and created spreadsheets showing the time period when each declarant worked, and, when possible, the foreman for which the declarant worked. (Id.) Employers assert that the spreadsheets conclusively *519 show when the declarants were employed and that, viewing the declarations in light of the spreadsheets, they show that none of the workers who provided declarations for Employers describe any unlawful practices during their time of employment. As discussed in the certification order, the evidence shortcoming was not just a result of the declar-ants’ failure to state when they were employed, but the fact they were not clearly addressing anything beyond the current practice of Defendants.
Employers also offer the declaration of Cesar Trujillo, the personal investigator who conducted interviews of fieldworkers, to attempt to establish that the declarations applied to the entire employment history of the workers. (Trujillo Deck, ECF No. 273-16.) Trujillo described the process in which he interviewed farmworkers and prepared reports based on the interviews. While the declarations were phrased in the present tense, Trujillo asserts that he questioned the farmworkers regarding their experiences through their entire employment history with Defendants. (Id. at ¶ 10.) He asserts that most of the crew members that he interviewed told him that they did not perform uncompensated work and were provided tools. (Id. at ¶ 13.) However, some did report violations, and Trujillo listed those violations on his reports. (Id.) He further explains why, even though the declarants made statements in the present tense, they should be interpreted to extend for the declarant’s entire employment history. 6 (See Id. at ¶ 13 .) Trujillo provided copies of his summary reports of his interviews, his handwritten notes from the interviews, and the copies of declarations “derived from” the interviews. (See Id. at ¶¶ 18-105 , Exs. 1-27.) It was Trujillo’s “understanding that declarations would be drafted from the information [he] obtained in [his] investigation.” (Id. at ¶ 9.) However, Trujillo provides no further information regarding how his notes were transferred to the declarations or whether he was involved in the process of preparing the declarations.
A review of the evidence presented raises questions about the reliability of the information presented, the reliability of Trujillo’s assertions that relatively few workers reported having performed uncompensated work, and the reliability of the claim that the declarations covered the entire work experience of each declarant.
Although many declarants stated that they are not required to perform uncompensated work, Trujillo’s reports and notes indicate many workers indicated they had performed uncompensated work in the past.
For example, Marta Lucio declared, in the uniform language found in Defendant’s declarations, that she presently is “never required to perform work off the clock.” (See ECF No. 273-20 at 25.) However, Trujillo’s interview notes state that although Lucio is never required to work off the clock, she used to be able to start work early. (See ECF No. 273-37 at 24. “This year no longer allowed to start working before shift. Some people start to get bigger checks ... Foreperson tells them to stop now.”)
Jose Mata’s declaration states that he has never been required to work off the clock. (See ECF No. 273-19 at 19.) However, Trujillo’s notes reflect Mata stating that until two years earlier, he used to start work early nearly every day during harvest season. (See ECF No. 273-37 at 51.)
Alejandro Vaca, despite stating in his declaration that he is not required to do pre-shift work, nonetheless explained to Trujillo that he sometimes moves boxes before the shift even though doing so is not allowed. (See ECF No. 273-18 at 10-11; ECF No. 273-37 at 58.)
Antonio Mariano states in his declaration that school is always held on the clock, but he noted during his interview that until two years ago he had not been paid for school time. (See ECF No. 273-18 at 23-24; ECF No. 273-37 at 60.) Trujillo did not include this reference to the past practice in his report. (ECF No. 273-18 at 5.)
*520 Jose Orihuela, stated in his declaration that he is not required to do pre-shift work, but explained to Trujillo that he sometimes moves boxes before the shift even though doing so is not allowed. (See ECF No. 273-29 at 32-33; ECF No. 273-38 at 63.)
Jose S. Bermudes’s declaration says that he used to start work early. It does not contain his interview comments to the effect that until a year ago, Defendants started school early. (See ECF No. 273-17 at 10-11; ECF No. 273-39 at 11-12.)
Maria Elvia Ruiz states in her declaration that she was required to take trays home to wash, but was not required to begin work early. (See ECF No. 273-17 at 22-23.) However, Trujillo’s notes show she used to start work early, but stopped two weeks ago and was told not to do it anymore. (See ECF No. 273-39 at 30.)
Rita Garcia also stated in her interview with Trujillo that she started work early until she was not permitted to do so this season. (See ECF No. 273-39 at 32.) Her declaration only states that she is not required to begin work early. (See ECF No. 273-17 at 43.)
Jesus Paniagua stated in his interview with Trujillo that he was allowed to, and did, start work early until this year. (See ECF No. 273-39 at 64.) He further stated that if they start work early now, they will be suspended. (Id.) His declaration only states that he is not required to begin work early. (See ECF No. 273-23 at 15-16.)
Similarly, Trujillo’s notes and reports reflect that several workers did not perform pre-shift work even thought their signed declarations say they did. Argelia Reynoso states in her declaration that she sets up early during packing season. (See ECF No. 76-3 at 99-100.) Trujillo’s notes do not reflect this. (See ECF no. 273-39 at 1.) The same applies for Alfredo Aguilar and Rene Lopez. (See ECF No. 273-17 at 25-26, 28-29; ECF No. 273-39 at 3, 9.)
Furthermore, several of the workers interviewed by Trujillo described that there was a policy change regarding pre-shift work. Salvador Vega stated that this year the workers are no longer allowed to start early, but he did not provide a declaration. (See ECF No. 273-38 at 69.) Joaquin Ibarra stated workers used to start work before the shift but they were told this week that they would be suspended if they start early. (See ECF No. 273-39 at 58.) Adelina Gutierrez stated workers used to start work before the shift even though they were not supposed to, but this year they were told that they would be suspended if they were caught. (See ECF No. 273-39 at 52.) Adrian Vasquez stated that he prepared his work area before the shift until two weeks ago, but is no longer allowed. (See ECF No. 273-39 at 60.) He provided a declaration in which he stated that he used to start work early; it does not include his statement that starting work early is no longer allowed. (See Johnson Decl., Ex. 86, ECF No. 76-4 at 71-75.) Victoria Rosales stated that she used to set up before the start of the shift, but as of a week before, workers were told they would be suspended if they started early. (See ECF No. 273-39 at 62.) Esperanza Alvarez provided a declaration stating that she did not perform pre-shift work, but omitted that she told Trujillo that only days before she was interviewed, workers were told that they would be suspended if they started early. (See ECF No. 273-39 at 67.)
Other declarants described a policy shift to prohibiting pre-shift work. Juan Mendoza’s declaration states that he used to start work early. Trujillo notes indicate that two weeks prior to the interview Mendoza’s supervisor told him that working early was no longer allowed. (See ECF No. 273-19 at 5, 27-28, ECF No. 273-37 at 45.) The information regarding the change in policy was not included in the declaration.
In light of the evidence included in Trujillo’s notes and reports that indicate pre-shift work was performed and the many declarations provided by Defendant indicating that pre-shift work was performed 7 , Defendant’s contentions that there is conflicting evidence on the issue is far less than persuasive. *521 While some fieldworkers may not have performed uncompensated work, a large number did. This reflects, at the least, a failure to enforce a policy prohibiting off-the-elock work. Trujillo’s report does not accomplish the purpose for which defendant submitted it.
Delano Farms, in support of its motion to decertify, provided the declaration of Sarah Gohmann Bigelow (“Bigelow Dec!.”). EOF No. 275-2. In the declaration, Bigelow contends that the “declaration and accompanying exhibit summarizing testimony reveal the diverse and varied employment practices at issue which render this case unsuitable for class treatment. The policies as applied and actual practices varied tremendously not only by foreman, but also by individual fieldworkers, with members of the same crews providing contradictory evidence.” (Bigelow Decl. at ¶ 3.) In her declaration, Bigelow provides charts reflecting declarants who asserted violations for pre-shift work arraigned by foreman along with tables describing the evidence supporting the information found on the table. (See Bigelow Decl., Exs. A-C.) In the chart, Bigelow consolidates the information provided by the declarants to show the number of allegations broken down by foremen. While there were 194 workers who provided testimony, many of the workers performed work for more than one foremen, and Bigelow counted the worker’s testimony multiple times. Accordingly from 194 workers, the chart resulted in 275 possible worker-to-foreperson matches. (See Bigelow Decl. at ¶ 12.)
In determining whether a declarant’s testimony showed that an activity was performed, Bigelow omitted declarants that claimed that the violations occurred prior to the relevant time period. (Id. at ¶ 17.) With regard to the pre-shift claims, the chart does not account for declarants who present allegations of witnessing other workers perform pre-shift work. (Id. at ¶ 18.) Bigelow counted any worker who performed pre-shift work of any kind, regardless of activity (i.e., attending school, setting up, picking grapes). (Id. at ¶ 22.) However, she did not count workers who voluntarily performed pre-shift work, or workers who performed a de min-imis amount of pre-shift work. (Id.) Bigelow did not define the amount of work she considered de minimis, but gave as an example a worker who started one or two minutes before the shift. (Id.)
Based on her determinations, 133 of the 275 declarant matches alleged that a foreman required pre-shift work without pay, 137 alleged that a foreman imposed no such requirement, and five did not specify. (Id. at ¶ 33.) Further, Bigelow contends that there were wide variations regarding whether pre-shift work was required by each crew. (Id. at ¶ 34.) Specifically, Bigelow points to the evidence that shows that pre-shift work was not required on 14 of the 57 crews represented, and on the remaining crews there is conflicting testimony from declarants as to whether pre-shift work was required. (Id.) Furthermore, Bigelow contends that of the assertions made in the 68 declarations provided by Plaintiffs, that significant variation of practices are described, including differences in the amount and frequency of pre-shift work performed during pre-harvest and harvest seasons, the amount of pre-shift work performed (varying between five or ten minutes to thirty minutes), variation in the type of pre-shift work performed (including school, preparing the work area, preparing labels and packing materials), and that the practices in pre-shift work changed over time (including allegations that after some time in 2009 or 2010, pre-shift work was no longer allowed). (Id. at ¶¶ 36-46.)
In response to the evidence provided by Defendants, Plaintiffs provide nine declarations to show that Trujillo did not ask declarants about previous season practices, that employment practices changed in 2010, and that declarants were required by Defendants to participate in the interview process. (Opp’n at 9-11.) For example, Plaintiffs provide the declaration of Anastaeio Arellano. (Perero Decl., Ex. B.) She states that the information contained in the declaration she signed for Defendants in September 2010 was true for the 2010 “harvest” season. (Id. at ¶ 2.) In March 2011, she was called to the T & R Bangi office and signed a declaration stating that her 2010 declaration reflected the practices of all previous seasons. 8 (Id. at *522 ¶ 15.) Arellano states that she signed the declaration “without knowing that the declaration included all of my years working for the company” and that her present declaration provides a more accurate description of her working conditions for the prior seasons. (Id. at ¶ 16.)
In her most recent declaration, Arellano states that for seasons 2005 through 2009, she was required to arrive and start work 10-15 minutes before the official start time and was not paid for that time. (Id. at ¶ 3.) She notes that when she was interviewed, the questions were asked in the present tense, and that she therefore answered truthfully regarding the practices during the 2010 season. (Id. at ¶ 8.) Had the interviewer asked, she would have truthfully told him that the earlier practice had been to require workers to arrive early to prepare the work area and that school was held before the start time. (Id.) Further, she says, her foreman was always present when workers set up before the start time and did not reprimand workers for working ahead of time. (Id.) Roberto Rocha’s declaration describes the same. (Id., Ex. I.) His first declaration asserted there were no violations, but he thought it applied only to the 2010 harvest period. He then signed a second declaration stating that the first declaration applied to his entire employment history, but only because he wanted to leave the T & R Bangi office and “did not want any problems at work.” (Id. at ¶¶ 15-16.) However, upon reflection, he notes that he was required to perform both pre- and post-shift work, wash trays, and purchase tools as described in his present declaration. (Id.)
Consuelo Cabrera, Jose Manriquez, Beatriz Rodriguez, and Sandra Rocha similarly note that the declarations that they signed in 2010 were based on interviews which they understood to have only encompassed conditions at the time of the 2010 harvest. If asked, they would have told the interviewer that they were required to set up early and that school commenced before the official start time in prior seasons. (Id., Exs. C, G, H, J.)
Lourdes Camacho signed an election to be excluded from the class action and a declaration provided by Delano Farms in support of its motion for decertification. (Perero Decl., Ex. D; Bigelow Decl., Ex. S.) She states that when interviewed at the Delano Farms office in connection with the latter declaration, she answered questions and signed the declaration quickly so she could return home, even though the facts stated in the declaration were incorrect. (Perero Decl., Ex. D. ¶ 8 & 13.) She now asserts that the foreman conducted school and she and other crew members would prepare work areas prior to the start of work. (Id. at ¶¶ 9-13.)
Guadalupe Hernandez declares that she was not aware of, and did not sign, the September 15, 2010 declaration in her name stating that no violations occurred. (Id., Ex. E.) Instead she asserts that she was required to engage in pre- and post-shift work, wash trays, and purchase tools in the harvest seasons prior to 2010. (Id.) Manuel Rodriguez also asserts in his declaration that he was unaware of and did not sign the November 3, 2010 declaration attributed to him stating that no violations occurred. (Id., Ex. F.)
(b) Analysis
The Court previously framed the common question with regard to pre-shift work as follows: “The common question is whether the wages are owed for off-the-clock work performed, whether a policy permitted uncompensated, even if not ‘required,’ off-the-clock work” and defined the subclass as “field workers who performed uncompensated and unrecorded work before the fixed start time in the harvest and pre-harvest work.” Arrendondo, 2011 WL 1486612 , at *12, *18-19, 2011 U.S. Dist. LEXIS 44134 , at *35, *56. The Court previously found Defendants’ evidence to be inconsistent and showing some violations in the past. It found that the question of whether uncompensated, albeit ‘not required’, pre-shift work was performed was sufficiently common to justify certification. Id. at *12 , 2011 U.S. Dist. LEXIS 44134 , at *35. Neither party argues that the scope of the subclass should be modified. The Court finds that the subclass *523 presents a prima facie claim for wage and hour violations.
Under California law, an employer must pay an employee for all “hours worked.” Hours worked are defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Morillion v. Royal Packing Co., 22 Cal.4th 575 , 94 Cal.Rptr.2d 3 , 995 P.2d 139, 141 (Cal.2000) (quotation omitted). Under this rule, an employer is deemed to have “suffered or permitted [an employee] to work” if it knew or should have known that its employees were working off-the-clock. Id., 94 Cal.Rptr.2d 3 , 995 P.2d at 145 . 9 Accordingly, the common question relating to whether Defendants’ policies or practices permitted uncompensated pre-shift work is congruent with the relevant legal standard for uncompensated work.
In a further attempt to emphasize variations in practice on pre-shift work, Employers stress the differences in type of work performed before the start of the shift, that Plaintiffs have provided no evidence as to their motive for starting work early, and that the evidence is unclear as to whether foremen knew that work was being performed early. The Court finds very little variance in the type of work the declarants stated they performed prior to the shift. The vast majority say they were either setting up or attending school. Regardless, the common question presented is whether uncompensated pre-shift was being performed. The particular task being performed is irrelevant to potential liability under California law. So too is the worker’s motive for working prior to the shift.
Defendants contend, correctly, that the issue of whether the foremen were aware of the pre-shift work is relevant because an employer is deemed to have “suffered or permitted [an employee] to work” if it knew or should have known that its employees were working off-the-clock. Morillion, 94 Cal.Rptr.2d 3 , 995 P.2d at 145 . However, many of the declarations either describe the foreman as requiring uncompensated work or, in the cases where declarants stated that they voluntarily started working before the shift, they show the foreman was aware as he or she would tell the declarant to stop. (See Johnson Decl., ECF No 76, Exs. 1 [“However, during the harvest season I sometimes began setting up my packing table before the shift started ... if the foreman saw me, he would make me stop.”], 2 [same], 5 [“I have seen some employees try to begin work early, but if anyone starts working early, the foreman will tell them to stop.”], 7, 10, 1, 12, 14, 18 [“If my foreman sees me working before the shift, he tells me to stop, but I continue working anyway.”], 23, 28, 40, 44, 45, 46, 49, 53, 70, 78, 86, 94 [“I have never seen anyone picking early, just gathering boxes and opening their packing table. When I see them do this, I tell them to stop.”], 95 [“Even though I told them twice, Hilario insisted on continuing work.”]; but see Ex. 76 [“I used to start preparing my table before my shift started ... I knew that I was not supposed to work early, so I did it in a way that the foreman did not see me.”]; Johnson Decl., ECF No. 273.) The evidence presented to the Court illustrates that there is strong evidence that the forepersons knew or should have known that workers were setting up prior to the shift. Defendant has not presented evidence that the forepersons were not reasonably aware of the conduct. Accordingly, alleged lack of knowledge it is not a legitimate basis to defeat a showing of commonality.
This is not to suggest that the employers are here being held accountable for trying to get the workers to stop pre shift work. While evidence at trial may enlighten as to whether the efforts to stop it were genuine, implicit in the act of stopping workers from *524 continuing uncompensated work is the fact that they had performed such work. Employers present no evidence that they recorded or compensated the employees for that work. The warning of the employees does not relieve the employer of the duty to pay for the pre-shift work.
The Court holds that the subclass presents “a common contention such that determination of its truth or falsity will resolve an issue that is central to the validity of [the] claim in one stroke” as required under Wal-Mart. See Abdullah v. U.S. Sec. Assocs., 731 F.3d at 957 . Here, the common question is whether the class members performed uncompensated and unrecorded work before the start time. At trial, should Plaintiffs prove the truth of the contention that uncompensated pre-shift work was performed, they will have established the central common issue on liability for the claim.
Defendants present various arguments why commonality does not exist. First, they argue that field workers were organized into crews directed by a foreperson and assistant foreperson who used personal discretion when directing fieldworkers and handling personnel matters. (Delano Farms Mot. For Decertification at 3-5.) Second, Defendants allege that that the large variations in practice from crew to crew (as shown in Defendants’ compilation and charting of the information in the parties 194 declarations) are inconsistent with a policy or practice adversely affecting the farmworkers. (Id. at 6-8.) Third, Defendants allege that it is inappropriate to rely on representative testimony and to extrapolate the anecdotal evidence of some of the members of the class to each subclass as a whole. Fourth, Defendants allege that since there are no records of the violations in the form of accurate time records or receipts for tools, an individualized inquiry would be required to determine if a violation occurred. Fifth, Defendants claim that the application of certain defenses will require individual determinations of each claim, forcing the court to face with an unmanageable set of mini trials. 10 (Delano Farms Mot. at 22.)
Though Defendants’ contentions may raise other issues, not 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.” Abdullah, 731 F.3d at 957 (citations omitted; emphasis in original). Here the single significant question is whether Plaintiffs can show that uncompensated and unrecorded pre-shift work was performed. That alone establishes commonality for the subclass.
It is beyond dispute that to the extent Plaintiffs engaged in voluntary pre-shift work, Defendants are liable under relevant California law for additional wages or overtime for that work. The distinction between those declarants who allege that the pre-shift work was required and those who allege that it was permitted is immaterial to the common question: was pre-shift work performed? Likewise, whether different tasks — setting up tables and work areas, attending school, or applying labels — were performed is immaterial to whether Plaintiffs did do pre-shift work.
Furthermore, Defendants’ attempt to rely upon a de minimis rule to avoid liability is not well articulated. First, it is unclear if the rule applies to state wage claims. Regardless, “the de minimis rule is concerned with the practical administrative difficulty of recording small amounts of time for payroll purposes.” Lindow v. United States, 738 F.2d 1057, 1062 (9th Cir.1984). The de minimis rule applies:
only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.
29 C.F.R. § 785.47 . “Employers, therefore, must compensate employees for even small amounts of daily time unless that time is so *525 minuscule that it cannot, as an administrative matter, be recorded for payroll purposes.” Lindow, 738 F.2d at 1062-63 . The Ninth Circuit applies the de minimis rule by considering the following factors: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1057 (9th Cir.2010) (citing Lindow, 738 F.2d at 1063 ). “[Tjhere is no precise amount of time that may be denied compensation as de minimis.” Id. at 1058 .
Defendants make no claim that the uncompensated time resulted from a failure or inability to keep proper payroll records of pre-shift work. Moreover, though the duration that some of the declarants worked pre-shift is short, Defendants have not alleged that it was not administratively possible to record such time. Even if a de minimis defense is presented at trial, it does not undermine commonality based on the common question of fact regarding whether uncompensated work was performed.
The Court finds implausible Defendants’ claim that they lacked knowledge that pre-shift work was occurring. The majority of the claims of pre-shift work described setting up the work area and attending school. Since this activity surely would be done in areas under a foreperson’s management, it is not credible to suggest that supervisors were unaware. The declarations made clear that many foremen were aware of the pre-shift work: declarants testified that foremen told workers to stop when they saw pre-shift work.
Finally, Defendants assertions that not all workers performed pre-shift work and that the amount of pre-shift performed varied shall be addressed in the predominance and ascertainability inquires. See Leyva v. Medline Indus., 716 F.3d 510, 514 (9th Cir.2013) (“[T]he presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).”).
In determining whether there is sufficient commonality, the Court must review and rely upon the declarations provided by each party. The Court is not attempting to determine the underlying merits of the matter, but at times it must address determinative issues to resolve certification issues. With that said, it is noted that there are general credibility concerns with regard to all the anecdotal evidence. Plaintiffs provided declarations supportive of their claims, and Defendants’ declarations generally tend to show the contrary. Clearly, the declarations were not taken at random. Because of the state of the evidence, it is also not particularly helpful to combine and statistically analyze the information in the declarations. Because of the differences in number of declarations submitted by the opposing parties, any attempt to calculate the percentage of workers suffering violations based on the number of violations reflected in declarations is not likely to lead to an accurate result. The same problems arise when attempting to show the percentage of violations that occurred in each crew. In many instances only one person in the crew provided a declaration. In the case of some crews, all the declarations were provided by only Plaintiffs or only Defendants.
Upon review of the evidence, including the new evidence provided by the parties, the Court reaffirms the earlier conclusions regarding the lack of credibility of the declarations presented by Defendants in opposition to the original certification motion. As previously noted, the majority of the declarations were presented in the present tense, and the Court was not willing to take the ‘evidentiary leap’ required by Defendants to assume that the description of practices applied to the entire period that each declarant worked. Arrendando, 2011 WL 1486612 , at *10-11, 2011 U.S. Dist. LEXIS 44134 , at *28-29. The Court found that since the declarants did not indicate the period of time that they were employed, it was not possible to determine the period covered by Defendants’ assertion that no violations occurred.
Many of the original declarations indicate that a significant number of declarants either performed or witnessed other workers perform pre-shift work. The Court’s previous order noted that “some” declarants stated that they performed pre-shift work. Upon further review, the Court finds that a significant number of Defendant’s original declarations reflect that pre-shift work was performed or witnessed. See Arrendondo, 2011 *526 WL 1486612 , at *11-12, 2011 U.S. Dist. LEXIS 44134 , at *33-34; see also Johnson Decl. in support of Opp’n to Mot. Class Cert., ECF No. 76-1 to 76-5, Exs. 1, 2, 7, 10, 11, 12, 14, 17, 18, 27, 32, 44, 45, 49, 53, 58, 64, 68, 76, 78, 86 (performed pre-shift work), Exs. 3, 16, 23, 28, 40, 46, 70, 71, 83, 84, 94, 95 (witnessed pre-shift work being performed).
Further, though trying to persuade the Court that the original present tense declarations described the declarant’s entire employment history, several of the notes and reports prepared by Trujillo reflect a distinct change in practice in 2010 from allowing pre-shift work to disallowing it.
Even the new declarations presented by Employers reflect that uncompensated preshift work was performed. (See Johnson Decl., Exs. 5, 9, 13, 17 [Declarants describe that they engaged in pre-work by setting up tables early.]) Furthermore, Plaintiffs provide additional declarations rebutting claims in several of the new Employer declarations about whether the entire employment history was covered by them.
As noted, much of the anecdotal evidence presented was previously provided. For example, Bigelow bases her charts and analysis on 194 statements taken by fieldworkers and foremen. Of those 194 declarations, 156 had already been presented to, and analyzed by, this Court in the original certification motion. Defendants have presented an additional 38 declarations. The combined the information therefore consists of the 69 declarations presented by Plaintiffs and 125 declarations presented by Defendants. 11 Even though the evidence contains significantly more defense declarations and those declarations, like Plaintiffs’, favor the position of the party who submitted them, Bigelow finds a nearly even split between declarants required to perform pre-shift work without pay and declarants not required to do pre-shift work. Moreover, Defendants’ charts limit affirmative answers to declarants who alleged that were required to perform pre-shift work and omits those who voluntarily performed uncompensated pre-shift work. The charts also omit declar-ants who were deemed to have performed de minimis pre-shift work. Accounting for these factors, the number of declarants who performed uncompensated work is larger than indicated in the charts, and this is without accounting for the significant number of declarants who stated they had observed other workers performing uncompensated pre-shift work. While such declarations do not add to the number of subclass members, they further corroborate the claim that workers did begin work early.
Employers stress the great variation in testimony between those who say they never had to attend school before the official start time and those who say they had to do so on rare occasions. While it is true that some defense declarants stated that they did not perform pre-shift work, nearly all of Plaintiffs’ declarations, and a significant number of Defendant’s declarations, assert that they did.
Employers describe the percentage of violations per crew in an attempt to show that either no violation occurred or that there was wide variation in violations. Defendant first points out that of the 58 crews listed, 18 crews reported no violations with regard to pre-work school. However, of those 18 crews, 15 had only one or two declarants. Such a sample size cannot produce a reliable conclusion. Likewise, of the 21 crews that report a 100% violation rate, fourteen have only one or two declarants. This produces equally unreliable conclusions. Indeed, the one conclusion that may be drawn is that the projected violation rate for any given crew is simply a reflection of whether Plaintiffs or Defendants provided the supporting declarations.
Defendant also points out that seven crews reported less than a 50% violation rate for pre-shift school and ten crews a greater than 50% violation rate. No matter what else may be gained from these numbers, they do indicate that a significant number of declar-ants performed pre-shift work.
*527 As discussed “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.’ ” Abdullah, 731 F.3d at 957 (citing Wal-Mart, 131 S.Ct. at 2551 .) In addition, all that Rule 23(a)(2) requires is “a single significant question of law or fact.” Abdullah, 731 F.3d at 957 (citing Mazza, 666 F.3d at 589 ) (emphasis in original). Plaintiffs assert that “[t]his lawsuit has nothing to do with proving why certain events occurred, and everything to do with whether certain events occurred.” (Opp’n at 21 (emphasis omitted).) While this may be a bit of an oversimplification, it is a instructive. The common issue is whether plaintiffs performed uncompensated work for which Defendants may be liable.
Cases relied upon by Defendants mostly involve harassment and miselassifieation claims. In such cases, individualized inquiries regarding intent or the specific job duties of the employee were necessary to determine liability. In this ease, it is immaterial whether the foreperson exercised discretion and required fieldworkers to arrive early, or alternatively, simply permitted them to work early. Regardless, Defendants face potential liability. Defendants raise several issues to indicate wide variation in pi’ae-tiee, including the motivation of the employee to work early, the discretion of the foreperson, the tasks performed, and the amount of time spent. None of the issues are relevant to establishing liability.
In conclusion, given the specific factual inquiry to be made in the present case, the Court again finds from the evidence that there is a common question as to whether uncompensated work was performed and that resolution of this common question adversely to Defendants may be the basis for potential liability.
(2) Post-shift Work
In attempting to argue that Plaintiffs have not presented sufficient evidence to establish commonality for the post-shift work subclass, Employers argue that the anecdotal evidence is conflicting and shows that some declarants say they performed uncompensated work post-sh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8771340. Public record. Not legal advice.