"California Appraisers for BoA Subsidiary May Advance as Class in Overtime Claims"

The Bureau of National Affairs, June 30, 2014 (link to PDF)

Reproduced with permission from Daily Labor Report, 125 DLR A-2, 6/30/14. Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

A federal judge in California granted class certification June 27 to some 240 home value appraisers alleging that a Bank of America Corp. subsidiary misclassified them as overtime-exempt under state law (Boyd v. Bank of Am. Corp., C.D. Cal., No. 13-00561, 6/27/14).

In the most recent decision involving Bank of America's LandSafe Appraisal Services Inc., Judge David O. Carter of the U.S. District Court for the Central District of California found these California appraisers met class certification requirements under Rule 23 of the Federal Rules of Civil Procedure. He certified a California class and two subclasses.

The appraisers claimed that LandSafe improperly denied them overtime, rest breaks and itemized wage statements in violation of the California Labor Code.

They formed a second group of appraisal employees who challenged the financial service company's application of administrative or professional exemptions, with a separate group of reviewers receiving the goahead on their $5.8 million settlement June 23 (124 DLR A-2, 6/27/14).

Commonality Shown. The judge found commonality requirements satisfied when ''Plaintiffs have shown, and LandSafe does not seem to dispute, that members of the California Class regularly work overtime without receiving premium pay or meal and rest periods.''

State court precedent allows certification when ''even a single common question will do,'' Carter wrote.

The court said for certification purposes in terms of the professional exemption, ''this action raises the common question, for example, of whether the members of the California Class are 'primarily engaged in an occupation commonly recognized as a learned . . . profession' in light of the minimum standards for licensing, certification, and continuing education.''

Adequacy of Representatives. The court rejected the company's argument that some proposed class representatives cannot adequately advance class claims.

Just because LandSafe alleged that Terry Boyd may have been an unethical employee doesn't automatically mean that he offered or will offer inconsistent depositional testimony, which is the focus of a certification inquiry, the judge found.

He also deemed Ethel Parks adequate despite remaining questions about prudential standing based on her omission of the suit in bankruptcy proceedings. Likewise, Linda Zanko's ''temporary health issues do not render her inadequate,'' the court said.

Common Questions Predominate. Regarding failure to supply itemized wage statements under Section 226 of the California Labor Code, the judge agreed with other courts that the newly amended Section 226 ''requires only a showing that an employee could not 'promptly and easily determine from the wage statement alone' the amount of gross or net payments made during a pay period.''

Carter found that LandSafe imprecisely stated California law. In Brinker Restaurant Corp. v. San Diego County Superior Court, 273 P.3d 513, 18 WH Cases2d 1852 (Cal. 2012) (71 DLR AA-1, 4/12/12), the California Supreme Court established that an employer is obligated to relieve employees of all duty during meal or rest breaks. But employers need not monitor that nowork is performed during meal or rest breaks, Carter wrote.

''Here, even if the Court accepts LandSafe's assertions that Residential Appraisers, who worked from home, had time to take breaks and LandSafe never prevented them from taking those breaks, the threshold common question remains: did LandSafe relieve its employees of all duty so that they could take their meal periods and rest breaks?'' the judge said.

Bryan Schwartz Law and Schonbrun DeSimons Seplow Harris & Hoffman LLP represented the appraisers. McGuire Woods LLP represented the Bank of America companies.

By Anna Kwidzinski

Contact the reporter:
Anna Kwidzinski in Washington
akwidzinski@bna.com

Contact the editor: 
Susan J. McGolrick at
smcgolrick@bna.com

Text of the order is available online.