Citing the California Supreme Court’s recent Brinker decision, Judge John A. Kronstadt has certified a class of approximately 1300 insurance adjusters who alleged misclassification and related wage violations by their employer, the insurance company Allstate, including off-the-clock work, unpaid overtime, and untimely final wages. See Jimenez v. Allstate Ins. Co., No. 10-08486 (C.D. Cal. Apr. 18, 2012) (order on motion to certify class action) (available here). Judge Kronstadt employed the Brinker court’s reasoning, which resulted in the denial of certification of the off-the-clock class in that case, to certify the Jimenez off-the-clock class. Order at 10-11. Unlike the situation in Brinker, although Allstate had facially compliant policies, Judge Kronstadt found that there was an informal systematic company policy to pressure or require employees to work off-the-clock. Id.
Jimenez is notable both in its application of substantive state law as articulated in Brinker and its adherence to the (still relatively new) class certification procedural criteria set forth in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). In considering the plaintiffs’ allegation that Allstate, notwithstanding its written policies compliant with California overtime laws, “turn[ed] a ‘blind eye’ to unpaid overtime actually worked” (Order at 8-9), the Jimenez court found that whether Allstate had an “unofficial policy” of discouraging the reporting of (and compensation for) overtime work constituted a common question capable of class-wide adjudication (Order at 9). As in Brinker, the existence of facially compliant policies did not suffice to establish compliance with the law: “Although Defendant has presented testimony that its official policies are lawful, this showing does not end the inquiry. Plaintiff’s theory is that Defendant has a common practice of not following its official policy regarding overtime.” Order at 10.
Jimenez thus follows the Brinker holding that employers may not insulate themselves from liability by issuing a compliant written policy but failing to follow either that policy or the applicable law the policy purports to reflect.