Legal Newsline

Wednesday, July 17, 2019

Calif. court gives hope to class action filed by custodians at ABM Industries

By Dee Thompson | Jan 16, 2018

SAN FRANCISCO (Legal Newsline) – A California appellate court has reversed a lower court's decision denying class status to janitorial workers at ABM Industries who retained a wage and hour expert, noting “it appears that plaintiffs have identified a number of common questions suitable for classwide resolution.”

The Dec. 11, opinion issued by the First Appellate District, Division Four notes “the trial court’s denial of class certification — including its decision regarding the admissibility of the (Aaron) Woolfson materials — rested on improper criteria and erroneous legal assumptions, amounting to an abuse of discretion. Plaintiffs have made a showing sufficient to allow them to take the next step in attempting to prove the merits of their contentions on a classwide basis.”

ABM is a large company employing thousands of workers across the state of California. 

In 2007, employees of ABM Industries Inc., a janitorial services company, filed a complaint alleging “that ABM violated California labor laws by, among other things, failing to properly record and compensate employees for meal breaks; requiring employees to work split shifts without appropriate compensation; and failing to ensure that employees were reimbursed for expenses incurred when traveling between work sites,” according to the appellate court's opinion.

The original complaint alleged numerous wage and hour issues. ABM employs site supervisors at its various locations around the state of California. Those supervisors are supposed to adjust the payroll software system LMS (Labor Management System) when a worker works overtime. 

The class members allege, however, that often the supervisors didn’t note when additional hours were worked, and thus employees were not compensated. They were, instead paid for only the hours on the system. They also allege employees were not always given the meal breaks they were entitled to after five hours of work.

In 2010, ABM moved for class action status for some of the workers who had specific wage and hour issues. Briefs were filed and arguments made, but the trial court ruled in September 2011 that the expert witness retained by the employees didn’t offer admissible evidence and therefore it denied class certification. 

The expert was Aaron Woolfson, a database services provider who “analyzed certain timekeeping and payroll data maintained by ABM with respect to its employees,” according to the appellate opinion. Woolfson was able to analyze wage and hour records and made conclusions. 

“For example, Woolfson determined that, of the 1,141,903 shifts greater than five hours that failed to show any time-out/time-in entries during the scheduled workday, 1,070,517 of those shifts (94 percent) nevertheless showed an automatic 30-minute meal period deduction,” the opinion notes.

The trial court found Woolfson’s testimony inadmissible, ruling his declarations failed to qualify him as an expert on anything material to the class certification motion. 

The appellate court concluded in its opinion that “the trial court’s wholesale exclusion of plaintiffs’ expert evidence in this case was error. We further determine that the trial court’s refusal to grant class certification on these facts was an abuse of discretion, and therefore reverse.” 

The opinion was authored by Justice Timothy Reardon, with Justice Ignazio Ruvolo and Justice Maria Rivera concurring.

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First District Court of Appeal California