Judge: William D. Claster, Case: 21-01201041, Date: 2022-09-30 Tentative Ruling

Plaintiff Melissa Moss's Notice of Motion and Motion For Preliminary Approval of Class Action Settlement ROA 63

Plaintiff’s motion for preliminary approval of class action settlement is CONTINUED to November 4, 2022 at 9:00 a.m. in Department CX104 to permit the parties to respond to the following item of concern.  Any supplemental briefing shall be filed on or before October 25, 2022.  If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well.  In addition, Plaintiffs must provide proof of service of any revised settlement agreement and supporting papers on the LWDA.

Regarding claim valuation, the meal and rest break claim is valued based on 1,136 “instances” of meal and rest break violations.  The theory of the claim is improper calculation of the missed break premium by failing to include nondiscretionary incentive payments in the regular rate.  In supplemental briefing, counsel explains that there are 1,136 workweeks where wage statements show both (1) a nondiscretionary incentive payment and (2) a missed break premium. 

As the Court understands wage statement penalties and PAGA penalties, they are assessed on a workweek or pay period basis.  But isn’t each underpaid break premium a separate violation under § 226.7?  For example, if an employee received five break premiums in a workweek where he or she also received a nondiscretionary incentive, doesn’t that give rise to five separate violations?  Yet it appears counsel’s valuation assumes each workweek only gives rise to one “instance” of penalties.  Shouldn’t the claim be valued based on the actual number of missed break premiums paid to an employee in a workweek where nondiscretionary incentives were paid?  If so, how does this affect valuation of the claim?  Was counsel provided the necessary information to value the claim on this basis?