Weak evidence defeats class certification against Walgreens for Lunch Break Violations

In  In Re Walgreen Co Overtime Cases (231 Cal. App. 4th 437) the Court of Appeals affirmed denial of class certification in the putative class action for lunch break violations.  Plaintiffs provided both contradictory and questionable evidence in their attempt for certification and the Court quickly rejected their claim. Lead plaintiff Larry Collins brought suit against Walgreens charging the drug store chain for violating employees’ rights to meal breaks.  According to Brinker Restaurant Corp. v. Superior Court (53 Cal.4th 1004), an employer must make lunch breaks available, but does not need to ensure that employees take the provided breaks.

This was Collin's first mistake.  Collins’ provided expert testimony, emails, and declarations to support his motion for class certification.  His expert testimony failed because the expert assumed a violation where the employees did not take breaks – applying an ensure standard instead of the make available standard.  Collins’ second mistake was providing a Walgreens’ email that repeatedly stressed break requirements to management to prevent violations of the Labor Code.  Collins’ third mistake was his worst.  He submitted 44 form declarations, mostly identical, and recanted by many of the declarants through testimony.  The trial court judge gave no weight to the declarations, admonished class counsel and the Court of Appeals agreed.

The trial court order was affirmed and Walgreens was granted costs.