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Group of Northern California Nurses get class certification in unpaid wage class action in Allison v. Dignity Health

Group of Northern California Nurses get class certification in unpaid wage class action in Allison v. Dignity Health

Quintilone & Associates (https://www.quintlaw.com/our-team/) and a team of attorneys from The Markham Law Firm (http://www.markham-law.com/) obtain class certification for up to 3,000 nurses in a group of hospitals managed by Dignity Health.  David Markham Esq. handled the oral argument with briefing handled largely by Maggie Realin Esq. and Lisa Brevard Esq. and litigation tasks being handled by Richard Quintilone II Esq and Jeffrey T. Green Esq. On January 13, 2022, Judge Richard B. Ulmer Jr. granted a motion for class certification, certifying the following class of employees and related subclasses:

“All California residents who worked for Defendant as Registered Nurses at St. John’s Regional Medical Center in Oxnard, CA and/or St. John’s Pleasant Valley Hospital in Camarillo CA; and/or Mercy General Hospital in Sacramento, CA during the time period from June 1, 2014 to the present.”

Ascertainability and Numerosity

The Court held that “Ascertainability is achieved by defining the class in terms of objective characteristics and common transactional facts making the identification of class members possible. (Bomersheim v. Los Angeles Gay & Lesbian Center (2010) 184 Cal.App.4th 1471, 1483.) Regarding numerosity, the key issue is whether the class is so large as to make joinder impracticable. (Hendershot v. Ready to Roll Transportation, Inc. 7 (2014) 228 Cal.App.4th 1213, 1222.) Dignity does not dispute ascertainability. As to numerosity, the Court held “plaintiff says the class contains 1,040 registered nurses. (Markham Dec. 17.) Dignity does not dispute numerosity, but says the putative class numbers 3,006. (Opp. 6.)”

Commonality, Predominance and Superiority

The Court held that predominance element’s key question is whether issues that may be jointly tried- as compared to those requiring separate adjudication- are numerous so a class action will be advantageous.  (Brinker v. Sup. Ct. (2012) 53 Cal.4th 1014, 1021; ABM Indus. Overtime Cases (2017) 19 Cal.App.5th 14 277, 307.) Courts examine the complaint and declarations supporting certification to learn plaintiffs theories of recovery, assess the disputes likely to be presented and decide if the issues are such that resolution in a class action is desirable and feasible. (Brinker, 53 Cal.4th at 1021-22, 1025.)

In rejecting the majority of the defendant’s arguments, the Court held “a class certification motion is not the vehicle to resolve a case’s merits. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440-41.) At the certification stage, the court only determines whether “the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.” (Sav-On Drug Stores, Inc. v. Sup. Ct. (2004) 34 Cal.4th 319, 327.)

The Court went on to hold that “If a defendant’s liability can be determined on facts common to all class members, a class will be certified even if members must individually prove damages. (Brinker, 53 Cal.4th at 1022) A court is to grant certification so long as plaintiffs posited theory is amenable to resolution on a class-wide basis, even if the theory is ultimately incorrect. (ABM,· 19 Cal.App.5th at 307-08.) In evaluating predominance, the court considers whether individual issues can be managed fairly and efficiently. (Duran v. US. Bank National Assn. (2018) 19 Cal.App.5th 630, 638.)”  Opinion page 2.

Class actions are meant to benefit litigants and courts. (Sav-On, 34 Cal.4th at 332.) In the wage and hour arena, “the class action mechanism allows claims of many individuals to be resolved at the same time, eliminates the possibility of repetitious litigation and affords small claimants with a method of obtaining redress for claims which otherwise would be too significant to warrant individual litigation … Moreover, the issues slated for contest are primarily common issues involving common evidence. It would not be efficient or fair to relegate these complaints to multiple trials.” (ABM, 195 Cal.App.5th at 299-300.)

Common Questions Predominate

With respect to Commonality the Court held that “As to the claims pled here, common questions predominate, and individual issues likely to arise are manageable. The Court declined to certify the reporting time claim was not pled, so I decline to certify it.

The Court found the Plaintiff’s trial plan an dtheory of the case more compelling than the Defendant’s denials. The Court found “Plaintiff contends that class members were forced to perform work off the clock for which they were not properly compensated due to Dignity’s policy against working overtime without management’s prior approval and Dignity’s chronic understaffing of its hospitals. (Mot. 19-20.)

Under Dignity policy, overtime work must be pre-approved by management. (Markham Dec. Ex.7 at 418.) If RNs do not receive a supervisor’s advance authorization, they are subject to discipline up to termination. (Id.) Plaintiff asserts that, due to Dignity’s inadequate staffing and overtime pre-approval policy, class members had to complete patient care notes in the Cemer program during their unpaid, off-the-clock time, i.e., before or after their shifts and/or during meal or rest breaks. (Mot. 20; Rply. 10.)

All RNs used Cerner to record patient information and TEAM2 to record time. (Mot. 9, 10.) Comparison of these two sets of Dignity records shows that RNs interacted with Cemer when they were not clocked-in to TEAM or Ceridian. Plaintiffs expert found that 93% of employees in a Cerner data sample recorded at least one Cerner entry while off the clock and 21 % of shifts in the sample contained at least one Cerner entry at a time when the employee was clocked out. (Fountain Supp. Dec. 4.)

Cerner is a computer program that contains patient information. (Mot. 10.) It is used throughout the Dignity Health system. (Jeffery Dep. 106.) RNs log in to Cerner with their credentials to input patient care notes or to check a patient’s information. (Id. at 108, 51-52.) Dignity does not allow nurses to use each other’s Cerner logins. (Allison Dec. 11.) All class members used Cemer. (Jeffery Dep. 105-06.)

Early in the class period, Dignity used Ceridian as its timekeeping program, but switched to TEAM  between 2013 and 2016 on a rolling basis. (Fulmer Dep. 21.) The standard clock-in procedure requires RNs to record time through TEAM at a physical location, i.e., at wall clocks. (Jeffery Dep. 53-54.) RNs could not manually edit a time punch in Ceridian or TEAM; any time change had to be approved by a manager. (Fulmer Dep. 25, 76.)

Dignity argued against certification claiming that its policy has always been to pay for overtime  work regardless of whether it was pre-approved. (Opp. 16; Jeffery Dec. 110.) But this is disputed by deposition testimony of class members. (Grohman Dep. 43, 78; Cato-Davis Dep. 37.) Dignity further argued that Cerner and timeclock records do not show its knowledge of RNs’. off-the-clock work. (Opp.5 16-17.) However, the evidence shows that Cerner charting must be done on site, which indicates that Dignity supervisors knew – or should have known – that RNs were charting during breaks or after their shifts. (Grohman Dep. 42.) The Court held “Plaintiff has shown common issues of fact material as to the overtime/unpaid wage claims, and specifically whether Dignity’s policy requiring overtime pre-approval forced RNs to work off the clock.”

The Court made similar findings for Meal Breaks, Rest Breaks, as well as finding that Vocera and Spectralink devices used created issues suitable for class treatment and adjudication. Plaintiff asserts that class members regularly had meal and rest breaks interrupted due to Dignity’s policies requiring RNs to wear Vocera or Spectralink devices. (Mot. 8, 20-21.)

RNs at St. John’s-Oxnard and Mercy General hospitals were required to use the Dignity-issued communication device called Vocera. (Opp. 10; Jeffery Dep. 33.) RNs are handed a Vocera device from the prior shift or pick one up from a charging station. (Id. at 39.) RNs log in to Vocera with their name. (Id. at 39, 41.) RNs push a button or use a voice command to reach co-workers or managers. (Id. at 35.) Dignity’s policy requires RNs to wear Vocera at all times while on duty, log in at the beginning of the shift and log out at the shift’ s end. (Ex. 1.) Plaintiffs expert found that 13 % of shifts in a sample had at least one Vocera entry at the time an employee was clocked out for lunch in the timekeeping program. (Fountain Supp. Dec.) Dignity argues against class certification claiming that it provides compliant meal and rest breaks to RNs because its policies instruct RNs to hand or tum off their hospital devices while on breaks. (Opp., 7, 10, 22; Jeffery Dec. ,r,r7-8.) Dignity further argues that even if RNs monitor their devices during meal and rest periods, premiums are owed only if the RN actually responded to a call.

The Court held “Our supreme court holds that meal and rest periods must be, “off-duty,” meaning employees must be relieved of “all work-related duties,” including to remain “on call,” and they must be “free from employer control” over how they “spend their time.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 264, 269-270) Plaintiff thus raises a legal question as to whether Dignity RNs were afforded proper meal and rest breaks if they could be interrupted, and a common issue predominates. Under a similar theory and for the same reasons, plaintiff contends that Dignity’s policy of requiring RNs to request rest break premiums is unlawful under Donohue. For the reasons stated above, the legality of Dignity’s policy shifting the burden to employees to request premiums is capable of class-wide esolution and is common to the rest break subclass. (Mot. 18; Opp.12; Rply. 7.) While Augustus concerned Wage Order 4 and Wage Order 5 applies here, the two orders have identical est break requirements.

The Court held Dignity’s focus on Vocera’s “do not disturb” function is misplaced. “The mere existence of a lawful break policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks.” (Alberts v. Aurora Behavioral Health Care (2015) 241 Cal.App.4th 388, 406.) Further, that there is evidence workers sometimes were able to take uninterrupted breaks does not defeat a conclusion that individual issues predominate. (Alberts, 241 Cal.App.4th at 407.) Plaintiff adduces evidence that she and other class members missed meal and rest breaks due to interruptions by Dignity-issued devices. (Farillas Dep. 73; Grohman Dep. 52-53; Baker Dep. 26, 31; Jeffery Dep. 127; Johnson Dec. ,r6-7; Olivera Dec. ,rs.) This suffices to show common questions.

The Court also certified the Meal Break Waivers as Employment Condition subclass holding that, “Plaintiff seeks certification of a meal break subclass on the theory that Dignity required RNs tosign meal break waivers as a condition of employment. (Mot. 13, /21.) Dignity permits employees to waive one of their two 30-minute meal breaks when they work long shifts. (Opp. 13; Jeffery Dec. ,r12.)5 The waiver form is presented along with mandatory Dignity new hire paperwork. (Jeffery Dep. 121-24.) Dignity says plaintiff cannot establish commonality or typicality on this theory because Dignity did not uniformly require employees to “maintain” meal period waivers. (Opp. 19.) Rather, employees could sign a waiver or decline, an~ the waivers could be revoked- as plaintiff did. (Jeffery Dec., Opp. 19-20.) Dignity’s argument mischaracterizes plaintiffs theory, which is not that Dignity uniformly required employees to “maintain” meal period waivers, but that Dignity required RNs to sign the meal break waivers as a condition of employment Plaintiff provides evidence from class members who say they believed they were required to sign the waiver upon hire. (Richardson Dep. 51; Allison Dec. para 15.) A common question exists as to whether providing a meal break waiver together with mandatory paperwork pressured RN s to sign the waiver as a condition of employment.

Next, the Court certified the wage statements for both premium pay and accuracy and timeliness and found that the case was manageable.

Finally, the Court found both the Plaintiff and her lawyers were adequate and experienced n class action litigation. The Court held, “Plaintiff’s declaration attests to her understanding of her fiduciary duties to the class and her preparedness to serve as a class representative. (Allison Dec. ,r,r2, 5-6, 14-18.) No apparent conflict of interest exists between plaintiff and the putative classes, or amongst the putative classes.”

The Court went on to hold, “Counsel submitted declarations demonstrating extensive experience serving as class counsel. (Markham Dec. 2-12; Quintilone Dec. 3-4; Haines Dec. 2.) This suffices.  Ultimately, Plaintiff’s motion for class certification is granted, excepting the unpled reporting time claim.

The case is entitled Joanne Allison v. Dignity Health, et al. San Francisco Superior Court Number CGC-18-566922, and the Order re Motion for Class Certification is found on the register of actions on January 13. 2021.

If you are a registered nurse and have any questions about whether you have been properly paid, paid all wages owed, asked to work off-the-clock, did not receive all meal and rest breaks or compensation for those breaks, whether you should have received a compliant paystub, or you believe you may have a claim against your employer for any violation of the California Labor Code, please feel free to call us at 949.458.9675 or email Jeffrey Green Esq. jtg@quintlaw.com, Kyle Gallego at kjg@quintlaw.com or Rich Quintilone II, Esq. at req@quintlaw.com if you have any questions or visit our website at www.quintlaw.com.

Quintilone & Associates focuses in Class Actions, Employment Law, Personal Injury, and Business Litigation in Orange County, CA area.