OVERTIME lAWSUIT

Allstate employees, please use this forum to offer suggestions about issues you feel might help the company in dealing with claims, or that might help us as insureds to deal with Allstate.

OVERTIME lAWSUIT

Unread postby FORMER EMPLOYEE » Tue Sep 26, 2006 8:10 pm

Does anyone know how much longer Allstate will be dragging its feet in getting our(California) settlement out. After all, it has been over a year.
FORMER EMPLOYEE
 

Unread postby Guest » Wed Sep 27, 2006 2:40 pm

In answer to your question, the following is contained in the Allstate employees atty's website:

http://www.overtimelawsuit.com/as/index.htm

(Updated September 19, 2006)

The statements, which will include a breakdown, are being prepared now for mailing within the next couple weeks and the checks will follow shortly thereafter.



(Updated August 24, 2006)


DISTRIBUTION OF SETTLEMENT PROCEEDS HAD TO AWAIT RESOLUTION OF ALL DISPUTED CLAIMS BY THE REFEREE. THAT PROCESS IS NOW COMPLETE AND WE ANTICIPATE PAYMENT TO CLASS MEMBERS IN APPROXIMATELY 4 WEEKS. WE APPRECIATE YOUR UNDERSTANDING THAT THIS IS A LONG AND COMPLICATED PROCESS. DETERMINATION OF THE AMOUNT OF AWARDS MUST BE ACCURATE AND THAT PROCESS HAS BEEN ONGOING FOR SOME TIME. WE ARE IN THE “HOME STRETCH”.

I am also a fellow former Allstate employee & thankfully so.
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Unionizing white-collar workers

Unread postby Guest » Thu Jan 18, 2007 11:31 am

http://www.sacbee.com/content/business/ ... 2665c.html

Unionizing white-collar workers
More professionals worry about benefits, unpaid overtime and outsourcing.
By Rachel Osterman -- Bee Staff Writer
Published 2:15 am PDT Monday, September 5, 2005

With wages stagnating in Sacramento and nationwide, economic anxiety this Labor Day has hit not just the low-wage workers who usually feel the brunt of economic uncertainty. It's also affecting highly skilled professionals.
Through the courts and in union elections, many white-collar workers are demanding many of the same things their blue-collar counterparts have sought for years: benefit protections and compensation for long hours spent on the job.
A recent wave of lawsuits has questioned insurance, technology and even brokerage firms' ability to avoid paying overtime in California. Employees are contending they have been wrongly classified in salaried, rather than hourly, positions.
As the labor movement looks to revitalize, many of the unions that have claimed the most success at recruiting new workers have done so by reaching out to white-collar workers: teachers, nurses, communications workers and even lawyers.
"White-collar work is being affected by some of the greatest technological advances we've ever seen," said Lee Price, director of research at the Economic Policy Institute.
"Companies are finding ways to do more with fewer people. If you look at the people who do paper-pushing jobs - payroll, accounts receivable, accounts payable - a lot of that has been made greatly more efficient because of computers," he said.
That has fueled concerns about jobs going overseas or disappearing altogether, Price said.
The anxiety is reflected in some recent opinion polls and economic measurements. A survey released last week of 805 union and nonunion workers nationwide by Peter D. Hart Research Associates found that 54 percent of those polled were "worried and concerned" about achieving their economic and financial goals, compared with 43 percent who said they were "hopeful and confident." The survey was commissioned by the AFL-CIO.
The anxiety comes despite generally strong growth in the overall national economy and a shrinking unemployment rate that, in California, dipped to 5.1 percent in July. But unlike many past recoveries, well-paid workers have faced some challenges during the most recent expansion.
After the U.S. Census Bureau reported last week that household incomes failed to increase for five straight years, an analysis by the Economic Policy Institute found the most significant decline in real income came in the upper-middle of the economic ladder - a bracket that encompasses many working professionals. The average real income of households in the fourth-highest bracket among five income groupings fell 1.1 percent from 2003 to 2004, dropping to a mean of $70,085. That drop is larger than in any other segment.
Although California saw growth in high-wage jobs between 2002 and 2004, the trend has since been reversed. The greatest surge among new jobs is in low-paying fields, such as retail and sales, according to University of California, Berkeley, economist Arindrajit Dube.
Meanwhile, businesses with some of the greatest concentrations of skilled employees have seen their compensation practices challenged in the courtroom.
In Silicon Valley, software workers who during the tech-boom years sometimes spent entire nights working at their desks are now demanding overtime. Electronic Arts and Sony Computer Entertainment America, for instance, have been sued by employees demanding overtime.
In the banking and insurance industries, a wave of similar challenges has hit Bank of America, Farmers Insurance Exchange and State Farm Insurance. On Thursday, Allstate Corp. said it would pay up to $120 million to settle charges that claims adjusters worked nights and weekends without overtime.
Last month Merrill Lynch & Co., in what could be the first in a series of settlements in the financial services industry, settled a California overtime case brought by stockbrokers who said they were wrongly classified as exempt from state and federal overtime laws.
Some of those who have taken legal action on overtime issues say they were overworked to the point of exhaustion.
"With the amount of work we had to do, it was mandatory 10-hour days, plus coming in on Saturdays," said Gary Oberholtz, a 57-year-old Glendale resident who helped bring a class-action case against Computer Sciences Corp., which settled it for $24 million.
Despite earning $72,000 a year, he considered the arrangement, in which his network engineering job was deemed exempt from overtime, to be unfair and tiring.
"All the time, you're busy with work," he said. "You just never rest."
Efforts to reach Computer Sciences Corp. were unsuccessful.
Not everyone in the technology field, however, approves of fighting management.
"The people who work in the technology industry are smart enough to understand economics. If you demand more than the company can afford, then everyone will be hurt," said Jeffrey Tarter, executive director of the Association of Support Professionals, the Watertown, Mass.-based group that represents employees in tech support departments.
"They're not dead-end jobs. If they don't like their job, they can leave," Tarter said. "These are high-skilled people."
Some legal watchers believe the wave of overtime suits in California says less about disgruntled employees than it does about opportunistic attorneys taking advantage of California's labor laws.
"It's being driven by the lawyers. They're constantly looking for areas where they can go in and file these lawsuits," said John H. Sullivan, president of the business-backed Civil Justice Association of California.
Whatever the case, organizers in the union movement have sought to capitalize on the concerns of professional workers.
Perhaps the biggest recruitment success unions have been able to claim in the past several years has come in health care, where nurses, technicians, pharmacists and other highly trained employees have signed union cards.
This is caused by two factors, labor experts say: frustration with work changes wrought by managed care, and expectations that unionization will prevent jobs from being transferred overseas, as many workers fear in more mobile industries.
After this summer's split in organized labor, unions in the two competing federations - the AFL-CIO and the Change to Win coalition - will likely find themselves competing to represent health care workers.
Still, challenges remain for any union attempting to bring collective bargaining into workplaces dominated by white-collar workers.
"With the professionals, they don't hate the boss, they want to be the boss," said Paul E. Almeida, director of the AFL-CIO's Department of Professional Employees, in explaining why reaching out to white-collar workers can be tough.
Kathy Ryals, a deputy public defender in Alameda County, echoed a similar theme in explaining her fellow attorneys' recent decision to join Local 21 of the International Federation of Professional and Technical Engineers.
"We're not dissatisfied with management; we just wanted a greater voice with the (county) Board of Supervisors," said Ryals. "We've been concerned about all the recent budget cuts and want to make sure our clients don't suffer."
A less traditional approach to organizing white-collar workers is being tried by WashTech, a Seattle-based affiliate of the Communication Workers of America. It has an organizing arm whose members don't necessarily have bargaining rights but who hope to add to public policy discussions about concerns in the technology workplace.
"I feel the American middle class was given a story back in the '80s when manufacturing disappeared, and we were all told that in the future we'll all be knowledge workers," said Peter Tucker, a semiretired Sacramento resident, who said he joined because he wants to see a national dialogue about sending tech jobs overseas.
"It lasted maybe 10 years, and now all the information worker jobs are going overseas," he said.
Cornell University labor expert Richard Hurd put it this way: "It's obvious how factories have changed. It's less obvious how white-collar work has changed, but it's just as significant."
ABOUT THE WRITER:
• ]The Bee's Rachel Osterman can be reached at (916) 321-1052
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Allstate's Stand On Unions-Any Surprise?

Unread postby RatPak11 » Mon Aug 13, 2007 5:49 pm

http://72.14.253.104/search?q=cache:3CY ... cd=4&gl=us

Allstate Union Is Banned


Published: December 3, 2002

The Allstate Corporation said today that the National Labor Relations Board had ruled that its agents could not form a union.

The board made its ruling following a petition by the Office and Professional Employees International Union, which wanted the board to rule that Allstate's agents were not independent contractors under the National Labor Relations Act. Such a ruling would have allowed them to hold an election on forming a union.

The ruling is a victory for Allstate's chairman and chief executive, Edward M. Liddy, who led the insurer's effort to switch its agents from employees to independent contractors to reduce costs and increase their productivity.

''Allstate is pleased with the decision,'' said Emily Daly, an Allstate spokeswoman. A union spokesman did not return a call for comment.
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Unread postby RatPak11 » Mon Aug 13, 2007 5:57 pm

http://72.14.253.104/search?q=cache:s_U ... cd=8&gl=us

Wary Allstate Agents Want Security

Source: Orlando Sentinel
Date: April 9, 1995

Veteran agents are trying to unionize. They claim the insurance company's business strategy reflects certain teachings of Church of Scientology founder L. Ron Hubbard that stress higher sales at any cost. The company says some agents are simply unhappy with Allstate's new-found emphasis on competition and service.

by Rene Stutzman

Mike Harrell of Kissimmee, an agent for Allstate Insurance Co. and a union organizer, holds up a red, three-ring binder.

Inside, illustrated with crude, child-like cartoons, are some of the teachings of L. Ron Hubbard, author of the best seller Dianetics and founder of the Church of Scientology, considered by some critics to be a cult.

The business philosophies collected in that binder - some preaching success at any cost - were the foundation of management-training seminars used by Allstate for four years, company officials have acknowledged.

Using those materials was a mistake, company spokesman Al Orendorff said, and Allstate banned them three years ago.

"There is absolutely no link between Allstate and the Church of Scientology," he said.

But the materials have become the center of a national dispute.

And nowhere has there been more controversy than in Central Florida, where veteran agents have filed discrimination complaints and begun to organize a union.

Allstate, the nation's No. 2 property and casualty insurance carrier with 46,255 employees, currently is union-free.

The company characterizes the Hubbard teachings as a "nonissue" that union supporters are using to turn agents against the company.

The real story, they say, is that the company is undergoing basic changes, becoming more competitive and service-oriented, trends that require agents to work harder and do new tasks.

Some agents, they say, are fighting the changes.

Since Jan. 17, Harrell, an 18-year company veteran, and others have crisscrossed the state, trying to convince agents they need to be represented by the United Food and Commercial Workers International Union.

At each rally, Harrell pulls out that red notebook, with Hubbard's teachings, and reads the most inflammatory passages.

They are in a section that instructs managers to reward employees whose sales, or "statistics," are on the rise and to hound and fire those with declining ones.

"Don't get reasonable about down statistics," the manual says.

"Reasonableness is the great enemy of running an organization." If an employee's sales are down, "Look for an early replacement," the manual advises.

What if an employee ringing up higher sales is using unethical sales tactics? Ignore it, the manual says. "Never even discipline someone with an up statistic. Never accept an ethics report on one - just stamp it, 'Sorry, Up Statistic' and send it back."

Orendorff, the company spokesman, said it was that section that prompted the company to ban the materials.

"That's not how we manage. That's not how we do business," he said.

Pressure for more sales
Originally, Allstate agents worked in Sears, Roebuck and Co. stores or offices paid for by the company, and they sold predominantly property and auto policies. Back then, agents with more than three years on the job faced little sales pressure from managers.

Then in 1984, the company began moving its agents into neighborhoods. It also began shifting office expenses, such as clerical salaries, rent and office equipment, onto agents. Those items now range from as low as $25,000 per year for a one-agent office to more than $100,000, Harrell said.

At both State Farm Mutual Automobile Insurance Co. and Nationwide Mutual Insurance Co., two similarly structured companies, agents pay all of their office expenses.

Allstate's managers have begun to press agents to make more sales.

Gerard McDermott, Allstate's vice president for the Florida Atlantic region, which includes Orlando, said agents are under more pressure than ever before to sell policies.

Much of that pressure is the result of a new, high-priority initiative to sell life insurance, the company's most profitable line. It has caused a deep rift between managers and some veteran agents.

Some agents who have built their careers on property and casualty business say their contracts do not require them to write life policies.

Managers sharply disagree. "Our agents are required to sell ... every line, and we expect them to sell," said George Giles, corporate director of human resources.

Allstate is not the only insurance company focusing more attention on the bottom line, said Jeffrey Cohen, an insurance industry analyst with S.G. Warburg & Co., a New York brokerage.

And Allstate has not been the most aggressive in pushing for more sales and tighter cost controls, he said.

Allstate prohibits employees, under the threat of firing, from talking to reporters, but some veteran Central Florida agents say they're frightened by the changes within the company.

After long careers that have produced millions of dollars in sales, they say they fear Allstate will dump them should their sales slip and replace them with younger, cheaper agents. A union, they say, would protect them.

Job security, Harrell said, is the No. 1 issue for agents attending organizing meetings.

Giles said, "We don't believe that a union can do anything for our employees that they can't do for themselves."

About 20 percent of the nation's 125,000 insurance agents are represented by the union, national union spokesman Greg Denier said. Among them are agents with the Prudential Insurance Company of America, John Hancock Mutual Life Insurance Co. and Metropolitan Life Insurance Co.

Agents 'threatened'
The potential for losing their jobs became clear to 16 Orlando-area agents on Oct. 31. One of the 16 goes to each union organizing meeting and tells the tale.

Here, according to more than one participant, is what happened:

Sixteen or 17 veteran agents - the versions vary slightly - were ordered to a special company meeting in Casselberry by Territory Agency Manager Daryl Starke.

The agents involved were mostly in their mid-40s to mid-50s, with tenures ranging from five to 30 years. Cumulatively, they had sold tens of millions of dollars worth of insurance for the company, but those sales were in property and casualty insurance - not in life insurance, a top company priority.

The agents were ushered into a small room. Starke barred them from asking questions. He told them they had done a poor job of selling life insurance and that, if that did not change, they faced disciplinary action and possible termination.

The agents say it was a meeting unlike any other in their memories. Allstate had never before called in and threatened a group of agents, participants said.

"I'd never been so humiliated and degraded ... Basically, I thought I was going to be fired right on the spot," one agent said.

Starke, who had taken the Hubbard-based seminar in South Florida before 1991, also would not be interviewed. Allstate officials, though, did not dispute the agents' version of events.

McDermott, Starke's supervisor, said the agents, along with all other Allstate agents in Central Florida, had known for 10 months that they needed to sell more life insurance. He said the ones called into the meeting had made little to no effort.

The agents were given 90 days to write six life policies or be placed on probation and face possible termination. To meet that deadline, some agents sold policies to family members. One loaned money to relatives and wrote three policies during a family gathering on Christmas Day.

Ultimately, McDermott issued a reprieve. No agents were disciplined, but "a handful" failed to make the goal, McDermott said.

Complaints filed
The incident provoked a strong reaction.

Two of those 16 agents, Hal Knowles and Marcos Sayago, filed religious-discrimination complaints against the company with the Florida Commission on Human Relations, which forwarded them to its federal counterpart, the Equal Employment Opportunity Commission.

The complaints allege that because the agents are Christian - not Scientologists - they were targeted for harsh treatment.

The complaints are pending before both agencies, which keep such complaints confidential until agency employees complete their investigations.

Knowles and Sayago, who also charged Allstate with age and disability discrimination, would not be interviewed, citing the company's ban on talking to reporters.

At least two other agents in that Oct. 31 meeting are pursuing age- and disability-discrimination complaints against the company with the same agencies.

Giles, Allstate's director of human resources, said the company does not believe it discriminated against any of those agents.

Said McDermott, "In absolutely no way does the meeting that Daryl conducted have anything to do with Scientology."

Not all agents are convinced that the company is rid of Hubbard's ideas. A few apparently think the company is in close alliance with the Church of Scientology, said Leslie Chapman-Henderson, Allstate's spokesman in Florida.

Other agents think the company has adopted - perhaps subconsciously - Hubbard's harsh teachings. "It's still there. You just can't see it," said John Softye, an agent in Long Island, N.Y.

Said one veteran agent in Central Florida, "It's so contrary to the company I've worked for for a lot of years ... My company would never do something like this before."

Consultant hired in '80s
How did Hubbard's teachings get inside the company? A small group of Allstate agents in California in 1988 wanted advice on how better to manage their offices, according to Gary Ott, an agent in California and one of the first to take part in the seminars.

One agent suggested a consultant, Don Pearson of International Executive Technology Inc. of Sacramento, Calif. The agents hired him, liked him, and because of referrals, other agency managers hired him too.

The praise reached Allstate's corporate office. Sales managers there listened to Pearson's presentation and hired him to run seminars from headquarters.

The manager who made that decision was then-Assistant Vice President Jeff Kaufman, now regional vice president in Kansas City, Mo.

Kaufman said recently that the offending materials, which contain dozens of references and footnotes citing Hubbard, were in handouts that he did not screen.

"Everything we heard, looked at was good about this consultant. We didn't know about the Scientology connection," he said.

Kaufman said he did not know that International Executive Technology is a licensed agent of the World Institute of Scientology Enterprises International, which sells rights to Hubbard's writings.

Allstate officials say because of incomplete record-keeping, they are not sure how many managers were put through the training.

Pearson is no longer with International Executive Technology.

He could not be reached for comment. President Ron Walker said that the Allstate seminars, which he also taught, had nothing to do with Scientology or religion.

He said Hubbard wrote articles and books on a number of subjects, including business administration, and the seminars stuck to business practices. He characterized the seminars as a success for Allstate. So did Kaufman.

Hubbard, a science-fiction author, founded the church in 1954.

World Book Encyclopedia describes it as a combination of Eastern religion, modern psychoanalysis and philosophy. It teaches that people are immortal, but because of negative experiences in previous lives, they are blocked from achieving their full potential.

To clear those blockages, followers go through auditing sessions with "E-meters," something like lie detectors.

Critics charge the church is a cult, taking advantage of emotionally vulnerable followers and draining them of money by charging hundreds of dollars for auditing sessions and other services.

Seeking safety in union
Some Allstate agents had been discussing the possibility of a union before that Oct. 31 meeting, Harrell said.

Less than three months later, they were circulating signature cards, the first step toward a union vote.

The union hopes to represent all 1,100 Allstate agents in Florida. To do that, it must persuade one-third of them - 370 - to sign cards requesting a union election.

Beth Shulman, vice president of the union's professional division, said in the next two weeks the union expects to receive signature cards from about one-third of the eligible voters in some areas of the state.

That would be enough to call an election just in those areas, something the union might do should its statewide effort fail, Shulman said.

Shulman would not identify the areas where the union is strongest. Supporters indicate Central Florida is one.

Giles described union supporters as a small group of dissident employees.

Joining one is something few local agents thought they would ever do.

"You have to understand: We're all straight commission. If we don't sell anything, we don't make anything. . . . We're salesmen.

We're not union men," said one Central Florida agent who has joined the union campaign.

"Allstate is a good insurance company," Harrell said. "I personally believe it can be made better if it concentrates on partnership with its agents."

The problem, Giles said, is that "many (agents) don't like change."
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Unread postby RatPak11 » Fri Sep 07, 2007 11:01 am

http://72.14.253.104/search?q=cache:7u3 ... cd=3&gl=us

Supreme Court Hands Down Ruling in California Overtime Lawsuit

April 18, 2007. By Heidi Turner

Los Angeles, CA: The Los Angeles Times (April 17, 2007) reports that the California Supreme Court handed down a ruling that triples the amount of back pay that employees can seek if they were forced to work through their breaks. The decision affects many people who are considered managers or assistant managers but generally spend less than half their time at work doing managerial tasks.

Hundreds of thousands of workers could be affected by the Supreme Court ruling, which will likely lead to more lawsuits being filed against employers.

The decision effectively allows employees to recover unpaid wages for as far back as three years. Employers had hoped that the courts would only allow employees to recover wages from one year. In handing down the ruling, the Supreme Court said that a missed lunch break "constitutes a wage or premium pay and is governed by a three-year statute of limitations."

The Supreme Court made its ruling while considering the case of John Paul Murphy, who worked for Kenneth Cole Productions at one of the company's retail stores from June 2000 until July 19, 2002. According to court documents, Murphy worked between nine and ten hours a day and was considered a manager. "He rarely, if ever, had the opportunity to take a rest period and, on occasion, was unable to go to the restroom." Murphy's shifts were often spent making sales, receiving merchandise, processing markdowns, and cleaning.

After he left his job, Murphy filed a claim with the Labor Commissioner, who found that Murphy was not an exempt employee and should have received pay for the overtime he worked. Kenneth Cole Productions filed an appeal, where the trial court awarded Murphy unpaid overtime, payments for missed breaks, and prejudgment interest. That court awarded the payments based on a three-year statue of limitations. Kenneth Cole Productions appealed again and this time the Court of Appeal found that break violations were subject only to a one-year statute of limitations. The Supreme Court then agreed to hear Murphy's appeal.

The major question was of whether payment for missed breaks constitutes a wage for the worker or a penalty against the employer. If it is a wage for the worker, then the three-year statue of limitations applies. If it is a penalty against the employer, the one-year statute applies. The California Supreme Court found that payment for missed breaks is a premium wage and not a penalty, meaning that employees can seek reimbursement based on a three-year statute of limitations.

In the past, large companies such as IBM Corp., Allstate, and Bank of America have been hit with similar lawsuits. These companies often settle rather than facing a long trial. Late last year, IBM reached a settlement with 32,000 computer technicians who claimed that the company failed to pay them overtime. IBM agreed to pay $65 million to settle the lawsuit.

In California, employees must get a 30-minute unpaid meal break for every five hours that they work. Additionally, they are entitled to a 10-minute, paid rest break per four hours worked. People who are classified as managers but spend the majority of the time performing non-managerial tasks often find themselves working without a break because they are considered managers and therefore not entitled to breaks. However, in order to be an "exempt" managerial worker, more than half of a person's time must be spent on supervisory duties. In many cases, people are classified as management but actually spend the majority of their shifts out on the sales floor, marking-down merchandise, cleaning the store, and taking out garbage.

If you have been classified as a manager and therefore are considered exempt from break laws, but spend less than half your on-the-job time in supervisory duties, contact a lawyer to discuss your options.
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Unread postby RatPak11 » Fri Sep 07, 2007 11:06 am

http://72.14.253.104/search?q=cache:gnD ... cd=3&gl=us

Allstate Adjusters Overtime Suit

Nettles, et al. v. Allstate Insurance Co., et al.

(Cook County Illinois Circuit Court Case No. 02 CH 14426)

Daniel J. Gatti and co-counsel are pursuing a class action claim on the behalf of Allstate Adjusters who worked overtime but never received their due compensation. Cook County Judge Quinn has heard the facts of this case and has granted class certification to casualty and auto-property adjusters who worked in the state of Illinois from August 8th, 1999 to present. If you are such an adjuster and have any questions about this overtime lawsuit, please contact us.
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Unread postby RatPak11 » Tue Sep 25, 2007 4:08 pm

http://www.courierpostonline.com/apps/p ... 1/70919056

Workers file overtime lawsuit
Wednesday, September 19, 2007


By EILEEN SMITH
Courier-Post Staff

CAMDEN -- Two insurance adjusters employed at the Mount Laurel office of AIG Inc. have filed suit under the Federal Fair Labor Standards Act claiming the company intentionally misclassified them and hundreds of other clerical workers as exempt from overtime.

In a collective action filed in U.S. District Court here, Sandy Dorofy of Blackwood and Angela Bonett of Shamong said they were assigned more work than could be completed in 40 hours a week, yet were paid only at straight time for the additional hours they put in.

The suit follows several other suits in which insurers have settled overtime claims. State Farm agreed to pay more than $200 million to settle a suit filed by claims adjusters, while Allstate Corp. settled for $120 million in a California case. Neither company acknowledged wrongdoing.

AIG said the suit, filed Sept. 6, is without merit.

comments:
Yes, this is very common among even big employers!!! It is very easy to determine what jobs are exempt and what are clerical. If the NJ Dept of Labor Wage and Hour -does their job, this should be settled fast...if they even know what their job is????

Posted by: yankeemannj on Wed Sep 19, 2007 10:28 pm
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Unread postby RatPak11 » Thu Oct 25, 2007 7:21 pm

RatPak11 wrote:http://72.14.253.104/search?q=cache:gnDAtS_2V2MJ:www.gattilaw.com/class_action_cases.asp+%22nettles%22+%22allstate%22&hl=en&ct=clnk&cd=3&gl=us

Allstate Adjusters Overtime Suit

Nettles, et al. v. Allstate Insurance Co., et al.

(Cook County Illinois Circuit Court Case No. 02 CH 14426)

Daniel J. Gatti and co-counsel are pursuing a class action claim on the behalf of Allstate Adjusters who worked overtime but never received their due compensation. Cook County Judge Quinn has heard the facts of this case and has granted class certification to casualty and auto-property adjusters who worked in the state of Illinois from August 8th, 1999 to present. If you are such an adjuster and have any questions about this overtime lawsuit, please contact us.



Click Onto The Following Website Address For Updates On Information Summary for Case #2002-CH-14426:

https://w3.courtlink.lexisnexis.com/coo ... H0BEECG0CH

On 8/29/2008 ALLSTATE INSURANCE COMPANY'S REQUEST FOR
SUMMARY JUDGMENT WAS DENIED BY
Judge KATHLEEN M. PANTLE






.
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Unread postby RatPak11 » Mon Nov 19, 2007 6:39 pm

http://www.adjusterovertimeaction.com/1261251.html

Adjuster Overtime ActionCall Us at (866) 302-5342

HOW TO JOIN

A Consent to Join Form must be completed, signed and postmarked no later thanJuly 7, 2006. If you did not receive a Consent to Join Form, or if you have lost the Consent to Join Form, you can download a Consent to Join Form and mail it to the following address:

In Re Allstate Overtime Litigation Claims Administrator

McInerney & Jones
18124 Wedge Parkway, Suite 503
Reno, Nevada 89511

---------------------------------------------------
*(Click onto the website address below in order to obtain the info mentioned)

http://www.adjusterovertimeaction.com/

Allstate Adjuster Overtime Action

There have been two recent court decisions which have ruled against adjusters seeking overtime compensation: Cheatham v. Allstate 465 F.3d 578 (5th Cir. 2006) and Miller v. Farmer's Insurance Case No. 0535080pv2 (9th Cir. March 30, 2007). Please note that the March 30, 2007 Miller decision contains corrections to an earlier version of that opinion. The substance of the Miller decision actually begins on page 13 of the opinion. If you would like to read the decisions yourself, you can click on the links below:

Cheatham v. Allstate Insurance

Miller v. Farmer's Insurance

You will be receiving a letter in the mail updating you shortly.
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Unread postby RatPak11 » Mon Nov 19, 2007 6:49 pm

http://72.14.253.104/search?q=cache:MDr ... cd=7&gl=us

Allstate Settles Overtime Dispute
Almost 3,000 white-collar employees are eligible to receive payments that could range from $1,000 to $100,000.

September 02, 2005

Craig Schneider
CFO.com | US


Labor Day means a little more this year to some employees of Allstate Corp. The insurer announced that it will pay as much as $120 million to settle claims that it refused to pay its California white-collar workers for working extra hours during nights and weekends.

The class-action lawsuit alleged that Allstate repeatedly assigned those employees so many claims that they had to work six days or more a week to handle them, according to the Los Angeles Times. Under California law, employers are required to pay time-and-a-half for work in excess of 40 hours a week. Almost 3,000 California-based claims adjusters are eligible to receive payments that could range from $1,000 to $100,000, depending upon tenure and the amount of overtime, the paper added. The average payout will likely fall about halfway between, a lawyer for the plaintiffs reportedly stated.

Other insurers have also been forced to change their ways. In January, State Farm Insurance Cos. agreed to pay $135 million to settle an overtime lawsuit by its claims adjusters in California. Last September, Farmers Insurance Exchange agreed to pay as much as $210 million to resolve overtime claims.

Similar class-action suits alleging overtime exploitation have been a growing trend for about five years and have spread to industries such as retail, restaurants, and banking. Previously, noted the Times, many of those claims were handled individually and not as a class, which can require a greater payout. Other California employers such as RadioShack Corp., Bank of America Corp., Starbucks Corp., and Rite Aid Corp. have also reportedly settled lawsuits that called for a reform of their white-collar pay policies. The common practice, the newspaper reported, has been to classify those workers as managers or administrators to avoid having to pay overtime.

Allstate "continues to deny any liability or wrongdoing with respect to the claims raised in the lawsuit," according to the Times, which cited a regulatory filing. The proposed settlement still must be approved by a Los Angeles County superior court judge.
Last edited by RatPak11 on Thu Jul 12, 2012 6:36 pm, edited 1 time in total.
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Unread postby RatPak11 » Tue Dec 18, 2007 12:19 pm

http://www.lawyersandsettlements.com/ar ... title.html

California Overtime Entitlement

December 11, 2007. By Jane Mundy

San Jose, CA: Mike Morgan (not his real name) was promoted from an hourly part time job to a new "fill-in" position as video-conferencer: a gray area, somewhere between part-time and full time. But his employer did make it clear that Morgan was exempt and therefore not entitled to overtime. However, the California Labor Law states that he is entitled to overtime compensation.

Morgan worked for a contracting company (let's call it company A) and provided his services to [company B]; he was classified as 'staff augmentation'—filling in to do video-conferencing. No management from his contracting company A was on site. Staff augmentation meant that a position is not available on part time or full-time basis, although I was working full time.

"The contracting company I worked for said all employees were exempt based upon the job we performed—we work in the IT field," says Morgan. "But I was putting in 12-17 hour days and only paid 40 hours per week regardless the hours work. When I started this job just after Thanksgiving, last year, I was told verbally by my contractor that it would be a 40-hour week.
Morgan was better off in his part-time position, getting an hourly wage. When he transferred to full time from part time, they put him on salary, and said he was exempt, but he would receive benefits. However, the amount of hours he worked meant little more than minimum wage.

"In January I started putting in longer hours," says Morgan. "It was a small department at the time and the job had to be done. The need for video-conferencing was growing but they didn't hire any more employees. We needed more people to come in so they gave me a lead position that had no supervisory authority. I couldn't write anyone up, couldn't discipline anyone, no management responsibilities.

"As more people were hired, I still ended up working long hours, up to the point of pulling a 20-hour day. As more staff came on board, they decided to go from staff augmentation to managed services: where both companies [A&B] both agree to have company A bring in a manager and everything is handled by that company and that manager. When that happened, things started going downhill.

No longer did company B have any control over the staffing of company A. They could bring in whoever they wanted—we had a lot of unskilled labor. And they decided to over-staff with the caveat that, knowing they were overstaffed, would also terminate employees. They brought in people from Canada, all over the US, to move here and perform this job function. These new people didn't know that, if someone didn't even like them, there were all kinds of reasons, they would be fired—but that's another lawsuit.

The main core staff of the contracting company got together and was going to make a proposal to the CEO-we wanted a new management team. Unfortunately, one of the full time employees of company B informed one of their managers who then informed manager of company A that this was happening. In order to dissuade what was going on, I was terminated—without getting paid any overtime.

First I went online to your site. Then I saw one of your attorneys and he told me I should go to the labor commission. I had all my documentation: hours and days worked. I filed for all my overtime and double time. The attorney informed me of the penalties-waiting time penalties which include your daily wages per day up until 30 days from the day you file, including weekends.

The commission advised me to contact the company and let them know I filed a claim. I sent them an email detailing everything including time unpaid and paid, was not exempt and should never have been classified as exempt and they need to pay me my overtime wages.

I got an email back: the contracting company considered me exempt because I was in a lead position in a supervisory role, blah blah. They offered me a portion of the amount I wanted to settle.

'No,' I replied. Their facts were incorrect and I wasn't about to settle for anything less. I wanted what was legally owed me. I wanted money owed and would settle for half the waiting time if they settled within three days.

They paid me.

Then I talked to my co-workers. Some of them are afraid to file, afraid of retaliation, afraid of losing their jobs.

My attorney also told me that there cannot be any repercussions for them filing a complaint. If so, there will be bigger penalties. I figured I would let my complaint about wrongful termination go. That's fortunate for the company."
Last edited by RatPak11 on Tue Mar 25, 2014 4:18 pm, edited 1 time in total.
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Unread postby RatPak11 » Wed Dec 19, 2007 10:31 am

http://209.85.173.104/search?q=cache:MF ... cd=1&gl=us

American Family Insurance Workers File Nationwide
Overtime Pay Class Action Lawsuit


Recent Case Developments - November 2007

The American Family Insurance case is currently pending in the United States District Court for the District of Colorado challenging American Family's practice of not paying overtime wages to physical damage representatives. This consolidated case is comprised of the following two cases: (1) Rocky Baldozier, et al. v. American Family Mutual Insurance Co., D. Colorado, Civil Case No. 04-cv-02174-WYD-CBS (the “Baldozier case”); and (2) Robert Schultz v. American Family Mutual Insurance Co., N.D. Illinois, Civil Case No. 06-cv-00322-WYD-CBS (Northern District of Illinois Civil Case No. 04-cv-05512) (the “Schultz case”).

Defendant's Motions for Summary Judgment Denied
American Family filed motions asking the Court to dismiss the cases without a trial on the ground that the named Plaintiffs, who have brought this case on behalf of American Family physical damage representatives, are not entitled to overtime pay as a matter of law. Counsel for Plaintiffs opposed these motions, and the Court held a hearing on the two motions on September 18, 2006.

On October 9, 2007, the Court issued an Order denying American Family’s motions. Click here to read a copy of this Order.

History of the Case


On October 20, 2004, current and former vehicle property damage claim adjusters of American Family Insurance ("AmFam") filed a nationwide class action lawsuit in federal district court charging the company with failure to pay overtime wages in violation of federal and state labor laws.
To contact an attorney regarding the American Family Overtime lawsuit, click here.

The proposed class includes hundreds of vehicle property damage claim adjusters in 17 states. The complaint charges that AmFam unlawfully misclassifies its employees who process vehicle property damage claims as "exempt" from certain state and federal labor laws in order to deprive them of overtime pay.

Relief Sought
The plaintiffs are asking the federal court to award compensation and damages to current and former employees who were denied overtime. To read a copy of the Complaint in the American Family Insurance Employee Overtime Lawsuit, click here (Adobe Acrobat .pdf format).


Contact Plaintiffs' Counsel
Current and former vehicle property damage claim adjusters of AmFam who wish to learn more about the lawsuit or share their work experiences with class counsel should click here or call toll-free 866-854-7830.
RatPak11
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Unread postby RatPak11 » Fri Mar 06, 2009 2:54 pm

RatPak11 wrote:
RatPak11 wrote:http://72.14.253.104/search?q=cache:gnDAtS_2V2MJ:www.gattilaw.com/class_action_cases.asp+%22nettles%22+%22allstate%22&hl=en&ct=clnk&cd=3&gl=us

Allstate Adjusters Overtime Suit

Nettles, et al. v. Allstate Insurance Co., et al.

(Cook County Illinois Circuit Court Case No. 02 CH 14426)

Daniel J. Gatti and co-counsel are pursuing a class action claim on the behalf of Allstate Adjusters who worked overtime but never received their due compensation. Cook County Judge Quinn has heard the facts of this case and has granted class certification to casualty and auto-property adjusters who worked in the state of Illinois from August 8th, 1999 to present. If you are such an adjuster and have any questions about this overtime lawsuit, please contact us.



Click Onto The Following Website Address For Updates On Information Summary for Case #2002-CH-14426:

https://w3.courtlink.lexisnexis.com/coo ... H0BEECG0CH

On 8/29/2008 ALLSTATE INSURANCE COMPANY'S REQUEST FOR
SUMMARY JUDGMENT WAS DENIED BY
Judge KATHLEEN M. PANTLE






.


Activity Date: 2/13/2009
Participant: NETTLES SHELENE
CASE SET ON TRIAL CALL
Date: 8/3/2009
Court Time: 0130
Court Room: 2410
Judge: PANTLE, KATHLEEN M.
Microfilm: CH000000000



Looks like this case is going to trial!



http://www.state.il.us/court/Opinions/A ... 102247.pdf

http://webcache.googleusercontent.com/s ... clnk&gl=us

ILLINOIS OFFICIAL REPORTS
Appellate Court
Nettles v. Allstate Insurance Co., 2012 IL App (1st) 102247
Appellate Court
Caption
SHELENE A. NETTLES and ED CZARNECKI, Individually, and on
Behalf of All Others Similarly Situated, Plaintiffs-Appellants and Cross-
Appellees, v. ALLSTATE INSURANCE COMPANY, an Illinois
Corporation, ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, an Illinois Corporation, and ALLSTATE
INDEMNITY COMPANY, an Illinois Corporation, Defendants-
Appellees and Cross-Appellants.
District & No.
First District, First Division
Docket No. 1-10-2247


Filed
May 29, 2012

Held
(Note: This syllabus
constitutes no part of
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)

In a class action by insurance claims adjusters alleging that they were
entitled to overtime wages, the trial court properly entered judgment for
defendants based on the determination that plaintiffs’ employer met its
burden of establishing that plaintiffs’ primary job duties came within the
provision of the Illinois Minimum Wage Law exempting employer from
paying overtime wages to employees working in a bona fide executive,
administrative or professional capacity.
Decision Under
Review
Appeal from the Circuit Court of Cook County, No. 02-CH-14426; the
Hon. Kathleen M. Pantle, Judge, presiding.


Judgment
Affirmed.
Counsel on
Appeal
William J. Harte Ltd. (William J. Harte and Joan M. Mannix, of counsel),
Walner Law Firm, Ltd. (Lawrence Walner and Michael S. Hilicki, of
counsel), and Laurie E. Leader, of Chicago-Kent College of Law, all of
Chicago, and Gatti, Gatti, Maier, Krueger, Sayer & Associates, of Salem,
Oregon (Daniel Gatti, of counsel), for appellants.
Kirkland & Ellis LLP, of Chicago (Richard C. Godfrey, P.C., Donna M.
Welch, P.C., Kathleen A. Ehrhart, and Amy E. Crawford, of counsel), for
appellees.
Lisa Madigan, Attorney General, of Chicago (Michael Scodro, Solicitor
General, and Brian F. Barov, Assistant Attorney General, of counsel),
amicus curiae.
Panel
JUSTICE KARNEZIS delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Rochford concurred in the
judgment and opinion.
OPINION
¶ 1
This case presents the question of whether insurance claims adjusters are entitled to
overtime. We answer the question in the negative, as did the trial court. Plaintiffs-appellants
and cross-appellees Shelene A. Nettles and Ed Czarnecki, individually, and on behalf of all
others similarly situated (collectively plaintiffs, unless otherwise noted), appeal from the trial
court’s order in favor of defendants-appellees and cross-appellants Allstate Insurance
Company, an Illinois corporation, Allstate Property and Casualty Insurance Company, an
Illinois corporation, and Allstate Indemnity Company, an Illinois corporation (collectively,
Allstate). On appeal, plaintiffs contend that they should receive overtime wages because
1
Allstate did not prove that plaintiffs came within the administrative exemption. For the
following reasons, we affirm the trial court’s order in favor of Allstate.
Allstate filed a notice of conditional cross-appeal regarding the trial court’s order certifying
1
the class. However, Allstate neither argued the cross-appeal in its response brief nor filed an
additional brief.

¶ 2
Background
¶ 3
Plaintiffs are current or former insurance claims adjusters employed by Allstate. Nettles,
a former Allstate claims adjuster in the state of Washington, filed a class action suit against
Allstate in the circuit court of Cook County in 2002. Nettles asserted class claims on her
behalf under the Washington Minimum Wage Act (Wash. Rev. Code Ann. § 49.46.005 et
seq. (West 2002)), and on behalf of other class members under the minimum wage laws of
the various states in which they worked. In 2004, Nettles filed a third amended class action
complaint in which she joined Czarnecki, a former Allstate claims adjuster in Illinois, as a
named plaintiff. Czarnecki asserted a similar claim under Illinois’s Minimum Wage Law
(820 ILCS 105/4a(1) (West 2002)). The class was certified in March 2006, with Czarnecki
as the lone class representative. This resulted in two independent, but joined, claims for trial:
Czarnecki and the class members’ claims against Allstate for violations of Illinois’s
Minimum Wage Law, and Nettles’ individual claim against Allstate for violations of the
Washington Minimum Wage Act. The case was bifurcated in order to defer discovery on the
issue of damages, and it proceeded to trial on the issue of liability.
¶ 4
Federal and Illinois Overtime Wage Laws
¶ 5
The Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq. (2006)) was
enacted by Congress to ensure the general well-being of workers and to eliminate labor
conditions “detrimental to the maintenance of the minimum standard of living.” 29 U.S.C.
§ 202(a) (2006). The FLSA provides that an employer must pay an employee overtime wages
if that employee works more than 40 hours a week. 29 U.S.C. § 207(a)(1) (2006). Illinois’s
Minimum Wage Law (820 ILCS 105/4a(1) (West 2010)) provides the same.
¶ 6
However, section 4a(2) of Illinois’s Minimum Wage Law contains numerous exceptions.
The exception contained in section 4a(2)(E) concerning administrative employees is relevant
here. In 2002, section 4a(2)(E) excluded:
“[a]ny employee employed in a bona fide executive, administrative or professional
capacity *** as defined by or covered by the Federal Fair Labor Standards Act of 1938,
as now or hereafter amended.” 820 ILCS 105/4a(2)(E) (West 2002).
¶ 7
The Code of Federal Regulations defined an employee employed in a bona fide
administrative capacity as any employee whose primary job duties: (1) consist of the
“performance of office or nonmanual work directly related to management policies or general
business operations of his employer or his employer’s customers”; and (2) “includes work
requiring the exercise of discretion and independent judgment.” 29 C.F.R. § 541.2(a)(1),
(e)(2) (2003).
¶ 8
Analysis
¶ 9
Standard of Review
¶ 10
At trial, Allstate had the burden of proving by a preponderance of the evidence that
plaintiffs were exempt from receiving overtime wages. Corning Glass Works v. Brennan,
-3-

417 U.S. 188, 196-97 (1974). Exemptions are to be construed narrowly against the employer.
Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir. 1994). Determining the duties
encompassed by an employee’s position is a question of fact; determining the appropriate
FLSA classification is a question of law. Roe-Midgett v. CC Services, Inc., 512 F.3d 865, 869
(7th Cir. 2008). For mixed questions of fact and law, or where a case involves an
examination of the legal effect of a given set of facts, the court must apply a “clearly
erroneous” standard of review. City of Belvidere v. Illinois State Labor Relations Board, 181
Ill. 2d 191, 205 (1998).
¶ 11
Identifying Plaintiffs’ Primary Job Duties
¶ 12
On appeal, plaintiffs first contend that the trial court failed to identify their “actual”
primary job duties. Plaintiffs take issue with the trial court’s characterization of the issues
at trial set forth in its written order. The court’s written order stated that one of the issues in
the case was, “Do the assigned duties of auto and casualty adjusters in Illinois, under the
policies, procedures and guidelines applicable to the class as a whole, fall within the
administrative exemption under [Illinois’s Minimum Wage Law]?” Plaintiffs argue that the
trial court should have focused on plaintiffs’ “actual” duties, rather than their “assigned”
duties.
¶ 13
Here, the trial court’s order consisted of 66 pages. It included 36 pages of factual findings
and 20 pages of legal conclusions. The order set forth the job duties of Allstate’s casualty and
auto adjusters in great detail. It first described the job of a casualty adjuster and the various
types of casualty adjusters there were depending upon whether they handled first-party
casualty claims or third-party casualty claims. It then described the job of an auto adjuster,
noting that there were four types of auto adjusters, which could be further broken down into
subcategories. The order also described the environments where casualty and auto adjusters
performed their work (e.g., traditional offices, market claim offices, drive-in facilities, and
field inspection centers). The order additionally determined that casualty adjusters’ primary
duties included: (1) setting and adjusting the reserve for each claim; (2) investigating and
determining coverage; (3) determining liability in multiparty accidents; (4) evaluating special
and general damages; and (5) negotiating with claimants, attorneys, and/or other insurance
companies to settle claims. The order further determined that auto adjusters’ primary duties
included: (1) estimating damages; (2) deciding whether a vehicle was a total loss, including
determining the condition of the vehicle as it affects the vehicle’s cash value; (3) negotiating
with insureds, claimants, and body shops; and (4) settling claims, including the issuance of
checks within their personal authority level. We find that the trial court identified
plaintiffs’ “actual” primary job duties.
¶ 14
Work Directly Related to Allstate’s General Business Operations
¶ 15
Plaintiffs next contend that Allstate failed to prove that plaintiffs’ primary job duties
consisted of the performance of office or nonmanual work directly related to the management
policies or general business operations of Allstate or Allstate’s customers.
¶ 16
Plaintiffs’ brief is silent as to the “office or nonmanual work” requirement. Therefore,
-4-
they have forfeited any argument with respect to that part of the issue. See Illinois Supreme
Court Rule 341(h)(7) (eff. July 1, 2008).
¶ 17
The Code of Federal Regulations defined the phrase “directly related to management
policies or general business operations of his employer or his employer’s customers” as
meaning “those types of activities relating to the administrative operations of a business as
distinguished from ‘production’ or, in a retail or service establishment, ‘sales’ work.” 29
C.F.R. § 541.205(a) (2003). The Code of Federal Regulations further provided that the above
phrase “limits the exemption to persons who perform work of substantial importance to the
management or operation of the business of his employer or his employer’s customers.” 29
C.F.R. § 541.205(a) (2003). An employee’s job title is not controlling; courts instead must
engage in a case-by-case analysis of the employee’s duties and responsibilities. Roe-Midgett,
512 F.3d at 870.
¶ 18
Plaintiffs specifically argue that they were engaged in “production” work, which was not
administrative in nature and was not of substantial importance to the management or
operations of Allstate and that the trial court erroneously relied on their job titles rather than
their job duties.
¶ 19
The trial court found that plaintiffs’ primary job duties consisted of adjusting claims. The
court further noted that there was a “unanimous chorus of federal case law” holding that the
claims adjusting function of the insurance business was administrative in nature and was
directly related to the insurance companies’ management policies and business operations.
¶ 20
Here, contrary to plaintiffs’ contentions, plaintiffs’ primary job duties did not involve
“production” work. Plaintiffs’ primary job duties involved adjusting claims, which included
administrative functions such as negotiating with various parties and representing Allstate.
Despite plaintiffs’ rhetoric that “[e]very day, all day, the adjusters process a never-ending
assembly line of claims,” plaintiffs did not work on a production line or produce anything;
rather, plaintiffs provided a service. Also contrary to plaintiffs’ contentions, plaintiffs’
primary job duties were of substantial importance to Allstate’s business. Allstate’s insurance
adjusters investigate and determine coverage of claims, negotiate with numerous parties to
settle claims, and legally bind Allstate to settlement agreements. This is not the type of work
that would be considered of little importance to Allstate’s business. Rather, adjusting claims
is one of the core services of Allstate’s business.
¶ 21
Further, the trial court’s order did not rely solely on plaintiffs’ job titles rather than their
specific job duties. The court’s order noted that Allstate’s casualty adjusters “represent the
company in determining and adjusting reserves, determining coverage, detecting fraud,
gathering evidence, assessing credibility, determining liability, evaluating damages, making
a recommendation on claims above their established authority, negotiating with claimants,
settling claims, interacting with customers, claimants, attorneys, and other insurance
companies, and, in the case of represented casualty adjusters, negotiating with attorneys and
collaborating with the company’s counsel if the case results in litigation.” The court’s order
also noted that Allstate’s auto adjusters “estimate the damage to a vehicle and determine
whether it is related to the covered loss or a prior loss, determine whether a vehicle is a total
loss, negotiate with claimants and body shops, settle claims, and make recommendations on
-5-

claims above their settlement authority.” The order further noted that auto adjusters’ duties
may also include “determining coverage and detecting fraud.” The trial court did not solely
rely on plaintiffs’ job titles rather than their job duties. The trial court’s determination that
Allstate met its burden of establishing that plaintiffs’ primary job duties came within the first
part of the administrative exemption is not clearly erroneous.
¶ 22
Work Requiring Discretion and Independent Judgment
¶ 23
Plaintiffs next contend that Allstate failed to prove that plaintiffs’ primary job duties
included work requiring the exercise of discretion and independent judgment. Plaintiffs argue
that their primary job duties were “skill” based rather than discretionary. Plaintiffs maintain
that because they were only given limited authority to settle claims and because that authority
was further limited by various computer programs and software, they did not use discretion
or independent judgment to settle claims.
¶ 24
The Code of Federal Regulations defined the exercise of discretion and independent
judgment as “the comparison and evaluation of possible courses of conduct and acting or
making a decision after the various possibilities have been considered.” 29 C.F.R.
§ 541.207(a) (2003). The Code further provided that the phrase “implies” that “the person
has the authority or power to make an independent choice, free from immediate direction or
supervision and with respect to matters of significance.” 29 C.F.R. § 541.207(a) (2003).
¶ 25
The trial court determined that plaintiffs’ primary job duties required the exercise of
discretion and independent judgment because with respect to Allstate’s casualty adjusters,
they made final decisions with respect to setting and adjusting reserves; determining
coverage; determining liability; evaluating damages; and negotiating with claimants,
attorneys, and/or other insurance companies to settle claims within their personal authority.
With respect to Allstate’s auto adjusters, the trial court found that they made final, binding
decisions on the estimate and payment of all claims within their personal authority level;
made judgments about whether to repair or replace a part; what type of parts to use; how to
condition the vehicle, or whether the vehicle was a total loss.
¶ 26
Here, as the trial court found, plaintiffs’ primary job duties were discretionary and
required independent judgment. Plaintiffs job duties were not synonymous with data entry
clerks. Although their job duties were limited by certain computer programs and there were
monetary limits for which they could settle claims, these limitations did not dispense with
their authority or power to make independent decisions. Plaintiffs were given authority to
settle claims within certain limits without input or approval from their supervisors. Settling
claims is considered a “matter of significance” and is important to Allstate’s business. The
trial court’s determination that Allstate met its burden of establishing that plaintiffs’ primary
job duties came within the second part of the administrative exemption is not clearly
erroneous.
¶ 27
This case is similar to Roe-Midgett v. CC Services, Inc., 512 F.3d 865 (7th Cir. 2008),
where the court held that the defendant’s employees who were automobile insurance claims
adjusters came within the administrative exemption and were not entitled to receive overtime
wages. The court first found that the plaintiffs’ job duties consisted of work directly related
-6-

to the general business operations of the employer or employer’s customers because the
plaintiffs played a significant role in the claims adjusting service the employer provided to
its insurance carrier clients; were at the “front lines” of the employer’s auto claims adjusting
operation; and spent most of their time in the field and represented the “face” of the employer
to the claimants and mechanics with whom they interacted. Roe-Midgett, 512 F.3d at 871.
The court further determined that the plaintiffs’ job duties of investigating, estimating, and
ultimately settling auto damage claims were “obviously ‘work of substantial importance’ ”
to the employer’s business operations and were the core service it provided to its customers.
Roe-Midgett, 512 F.3d at 871. The court then found that the plaintiffs exercised discretion
and independent judgment when they inspected vehicles for damage and verified whether the
actual damage was consistent with the claimed damage; evaluated whether the claimed
damage was likely preexisting, inconsistent with the alleged cause, or otherwise suspicious;
and considered the presence or absence of fraud. Roe-Midgett, 512 F.3d at 874. The court
further noted that its conclusions were consistent with numerous other opinions where a
claims-processing employee with similar responsibilities to the plaintiffs’ responsibilities
came within the administrative exemption and were not entitled to receive overtime wages.
Roe-Midgett, 512 F.3d at 875 (citing In re Farmers Insurance Exchange, Claims
Representatives’ Overtime Pay Litigation, 481 F.3d 1119 (9th Cir. 2007), Cheatham v.
Allstate Insurance Co., 465 F.3d 578 (5th Cir. 2006), Jastremski v. Safeco Insurance Cos.,
243 F. Supp. 2d 743 (N.D. Ohio 2003), and Palacio v. Progressive Insurance Co., 244 F.
Supp. 2d 1040 (C.D. Cal. 2002)).
¶ 28
Similarly here, plaintiffs’ job duties encompassed many of the same job duties as the
plaintiffs in Roe-Midgettthat were determined to come within the administrative exemption.
Plaintiffs’ casualty and auto claims adjusting duties generally included investigating claims,
determining coverage, estimating damages, negotiating with various parties and settling
claims. As the court found in Roe-Midgett, we also find that these are the types of duties that
come within the administrative exemption, thereby exempting plaintiffs from receiving
overtime wages.
¶ 29
Additionally, plaintiffs note that the trial court erred in considering the opinions of
Allstate’s expert, Dr. David Lewin. Plaintiffs argue that Dr. Lewin’s testimony should have
been disregarded because his opinions were irrelevant and unreliable.
¶ 30
Here, plaintiffs do not argue that Dr. Lewin’s testimony was inadmissible. Plaintiffs only
argue that the trial court should not have “considered” his opinions. However, plaintiffs do
not cite to any specific part of the trial court’s 66-page order regarding any possible error in
the court’s consideration of Dr. Lewin’s testimony. The issue is forfeited. See Ill. S. Ct. R.
341(h)(7) (eff. July 1, 2008).
¶ 31
Illinois’s 2004 Amendment to Illinois’s Minimum Wage Law
¶ 32
Lastly, plaintiffs contend that for claims after April 2, 2004, the date that section 4a(2)(E)
of Illinois’s Minimum Wage Law was amended, the trial court should have applied a
different test to determine whether plaintiffs were exempt from overtime wages. In 2004, the
Illinois legislature amended section 4a(2)(E) to exempt from overtime:
-7-

“Any employee employed in a bona fide executive, administrative or professional
capacity *** as defined by or covered by the Federal Fair Labor Standards Act of 1938
and the rules adopted under that Act, as both exist on March 30, 2003, but compensated
at the amount of salary specified in subsections (a) and (b) of Section 541.600 of Title
29 of the Code of Federal Regulations as proposed in the Federal Register on March 31,
2003 or a greater amount of salary as may be adopted by the United States Department
of Labor.” Pub. Act 93-672 (eff. Apr. 2, 2004) (amending 820 ILCS 105/4a(2)(E) (West
2004)).
¶ 33
On March 30, 2003, section 541.2 of the Code of Federal Regulations provided that if
an employee earned a salary of “not less than $155 per week,” and satisfied numerous
additional factors, he or she would be exempt from overtime wages. Those certain additional
factors were referred to as the “long test.” If an employee earned a salary of “not less than
$250 per week” and satisfied only two additional factors, he or she would be exempt from
overtime wages. Those two additional factors were referred to as the “short test.”
¶ 34
In other words, if an employee earned less than $155 a week, the employee would never
be exempt and would always receive overtime. If an employee earned $155 a week but less
than $250 a week, the employee would be exempt from overtime if the employer could prove
that the employee’s duties satisfied the requirements of the long test. If an employee earned
$250 or more a week, the employee would be exempt from overtime if the employer could
prove that the employee’s duties satisfied the requirements of the short test.
¶ 35
By amending section 4a(2)(E), Illinois adopted the definitions and rules in the FLSA as
they existed on March 30, 2003, for determining exempt employees, but adopted them using
the compensation stated in section 541.600 or an amount later adopted by the Department
of Labor. Section 541.600 provides that to qualify as an exempt employee, the employee
must be compensated at a rate of not less than $455 a week. 29 C.F.R. § 541.600 (2004). The
question raised here is the effect of the legislature’s actions in following the 2003 definitions
and rules of the FLSA, but adopting the $455 compensation rate to qualify for the exemption.
¶ 36
We note that plaintiffs did not raise the issue that a different test should apply to part of
plaintiffs’ claim until after trial, albeit before the court’s judgment order. Plaintiffs first
raised the issue in their proposed conclusions of law they submitted to the court. Allstate
filed a motion to strike, which the trial court granted. Despite the unfairness to Allstate
inherent in plaintiffs’ change in their playbook at the end of the game, the trial court
nevertheless addressed the issue, finding that the $455 amount elevated the statutory
minimum to qualify for the exemption while keeping the rest of the regulations the same.
The trial court further found that the amendment effectively eliminated the long test and kept
the short test because the minimum level to qualify for the exemption was higher than the
threshold for the application of the short test. Therefore, the trial court applied the short test
to plaintiffs’ claims. Although plaintiffs arguably forfeited this issue by not raising it at trial,
we will address it. We agree with the trial court that the short test applied to plaintiffs’
claims.
¶ 37
The goal of statutory interpretation is to ascertain the intent of the legislature. Brucker
v. Mercola, 227 Ill. 2d 502, 513 (2007). The best indication of legislative intent is the
-8-


statutory language, given its plain and ordinary meaning. Beelman Trucking v. Illinois
Workers’ Compensation Comm’n, 233 Ill. 2d 364, 370 (2009). If the statutory language is
clear and unambiguous, there is no need to resort to other aids of construction. Brucker, 227
Ill. 2d at 513. Statutory interpretation is a question of law, which we review de novo. Solon
v. Midwest Medical Records Ass’n., 236 Ill. 2d 433, 439 (2010).
¶ 38
The statutory language of section 4a(2)(E) is clear and unambiguous. In amending the
section, the Illinois legislature sought to follow the federal rules and regulations exactly as
they existed on March 30, 2003, except at a salary amount designated by the Department of
Labor. The salary amount adopted by the Department of Labor to qualify as an exempt
employee is an employee earning not less than $455 a week. Plaintiffs agree that they earned
$455 or more a week. Using that salary amount ($455 or more a week), we now look to the
rules and regulations as they existed on March 30, 2003. As stated above, those rules
included the long test and the short test and their respective salary thresholds of not less than
$155 a week but less than $250 a week, and $250 or more a week. According to section
541.2 as it existed on March 30, 2003, an employee who earned a salary of $250 or more a
week would be exempt from overtime if the employer could prove that the employee’s duties
satisfied the requirements of the short test. Since plaintiffs earned $455 or more a week, the
short test applies to their claims. As Allstate simply states in its brief, “ [i]f the short test
applies to all employees earning over $250 per week, a fortiori, it must apply to Illinois
workers earning $455 or more per week.” Further, as the trial court stated in its order,
“[t]hough this amendment effectively eliminates the long test, the remedy lies with the
legislature, not the courts.”
¶ 39
We are not persuaded by both plaintiffs’ and the Attorney General’s argument that the
new “not less than $455 per week” minimum replaced the “not less than $155 per week”
minimum in section 541.2 as it existed on March 30, 2003. Doing so would be rewriting
section 541.2. The legislature sought to preserve the federal rules and regulations as they
existed on March 30, 2003. Rewriting section 541.2 to change the minimum salary threshold
would be improper. Our above application of the Department of Labor’s latest salary
specification to section 541.2 as it existed on March 30, 2003, gives the Illinois amendment
its plain and ordinary meaning. Therefore, we find that the trial court’s application of the
short test to plaintiffs’ claims was proper.
¶ 40
Conclusion
¶ 41
For the aforementioned reasons, we affirm the judgment of the trial court in favor of
Allstate
Last edited by RatPak11 on Tue Mar 25, 2014 4:36 pm, edited 3 times in total.
RatPak11
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Thu Jul 12, 2012 6:04 pm

Pt1:

https://docs.google.com/viewer?a=v&q=ca ... CxZG-zr_6w

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL

Case No. LA CV10-08486 JAK (FFMx) Date April 18, 2012
Title Jack Jimenez v. Allstate Insurance Company, et al.CV-90 (10/08) CIVIL MINUTES - GENERAL
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE
Andrea Keifer Not Reported
Deputy Clerk Court Reporter / Recorder
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF’S MOTION FOR CLASS
CERTIFICATION (Dkt. 67)
DEFENDANT’S MOTIONS TO STRIKE DECLARATIONS OF DR. JOHN
KROSNICK (DKT. 70), DR. WILLIAM BIELBY (DKT. 71), AND GINA
COPES (DKT. 72)

PLAINTIFF’S MOTIONS TO STRIKE DECLARATIONS OF DANIEL J.
SLOTTJE (DKT. 90), PHILIP E. TETLOCK (DKT. 91), CHERYL WILSON
(DKT. 95), ELISSA PREDMORE (DKT. 96), HARLEY THOMPSON (DKT.
97), JOLYN ELLIOTT (DKT. 98), LORI HANSEN (DKT. 99), MATTHEW
WILSON (DKT. 100), SALVADOR DIEGO (DKT. 101)

PLAINTIFF’S EX PARTE APPLICATION FOR AN ORDER STRIKING THE
DECLARATIONS OF SHERYL L. SKIBBE AND EILEEN C. ZORC
(DKT. 151)

I. INTRODUCTION
Plaintiff Jack Jimenez (“Plaintiff”) brings this putative class action on behalf of himself and approximately 1300 other California-based claims adjusters, against his former employer, Defendant Allstate Insurance Company (“Defendant”). He contends that, notwithstanding Defendant’s 2005 reclassification of its claims adjusters from exempt to non-exempt hourly employees, members of the putative class allegedly have been expected to work in excess of 40 hours per week without receiving overtime compensation or proper meal and rest periods.

Pursuant to Rule 23, Plaintiff has moved to certify a class defined as: “All current and former California-based ‘Claims Adjustors,’ or persons with similar titles and/or similar job duties, who work(ed) for Allstate Insurance Company within the State of California at any time during the period from September 29, 2006 to final judgment.” Mot. for Class Cert. (“Mot.”), p. 2, Dkt. 67. The Court held a hearing on this matter on February 6, 2012, at which each side presented oral argument. Dkt. 155. At the conclusion of the hearing, the Court took the matter under submission. For the reasons stated in this Order, the Court GRANTS in part and DENIES in part the motion for class certification.
The Court grants the motion and certifies the proposed class with respect to Plaintiff’s first cause of action for unpaid overtime compensation, along with the following derivative causes of action:
Plaintiff’s fourth cause of action for violation of California Labor Code §§ 201 and 202 (wages not timely paid upon termination); and Plaintiff’s sixth cause of action for violation of California Business and Professions Code § 17200, et seq. The Court denies the motion to certify the proposed class with respect to Plaintiff’s second and third causes of action for meal and rest period violations. To the extent that Plaintiff’s derivative claims rely in part on these claims as the underlying violations, certification as to those portions of such claims is also denied.1

II. BACKGROUND
A. Allstate Corporate Structure
Defendant Allstate has 13 Market Claims Offices (“MCOs”), which are in different locations in California. Oylear Depo. 19:1-17, Wheeler Decl., Exh. A, Dkt. 67-2. All of Defendant’s California claims operations are considered part of one “Claims Service Area.” Id. at 22:2-3. The head of all California claims, Terry Lewkoski (“Lewkoski”), oversees the MCOs, each of which has a Market Claims Manager (“MCM”) who manages the MCO and reports directly to Lewkoski. Id. at 22:2-13. In general, MCOs are
divided into “units,” which are organized by type of claim, e.g., automobile liability, automobile damages, property. Each unit within an MCO is headed by a Frontline Performance Leader (“FPL”) who directly oversees the claims adjusters. Id. at 22:23-23:23; Ruiz Depo. 18:22-19:3, Wheeler Decl., Exh. B, Dkt. 67-2.
----------------------------------------------------------------------------------------------


1 Plaintiff’s fifth cause of action for violation of California Labor Code § 226(a) (non-compliant wage statements) is dismissed without prejudice because Plaintiff is a member of a certified class with respect to this claim in Williams v. Allstate Ins. Co., Case No. BC 382577, which is pending in the Los Angeles Superior Court. Plaintiff did not opt out of the certified class in Williams and, for this reason alone, cannot represent the same certified class in this action.
---------------------------------------------------------------------------------------------------------

B. Claims Adjusters
Since the filing of this lawsuit, more than 1300 claims adjusters have worked for Defendant in California. Defendant divides its claims adjusters into the following categories: (i) automobile liability (determining coverage and relative fault in an accident); (ii) automobile claims (physical damage to or total loss of an automobile); (iii) property claims (physical damage or loss to a building and/or its contents); (iv) casualty claims (liability claims for bodily injury or damage to property and first-party claims for medical claims under automobile policies and uninsured or underinsured motorist claims); and (v) special investigation (suspected fraudulent claims). Currently, there are approximately 86 FPLs in California who supervise approximately 880 adjusters: 23 Auto FPLs, 19 Liability Determination FPLs, 31 Casualty FPLs, 8 Property FPLs and 5 Special Investigation Unit (“SIU”) FPLs. These FPLs are responsible for, among other things, monitoring the workload of the adjusters in their respective units, managing and approving overtime requests, training new adjusters and scheduling work hours and breaks. Cohn Depo. 36:24-38:5, 46:5-16, 50:24-51:11, 99:20-100:21, Paley Decl., Exh. E, Dkt. 83-

1. Some of the MCOs do not have all five types of adjusters. Indeed, some MCOs have predominantly only one type of adjuster, such as Central Auto, which primarily has Auto Field adjusters; other MCOs have a greater variety of types of adjusters. Def. Supp. Brief, Exh. A, Dkt. 147-1.
Allstate also differentiates between “inside” and “outside” adjusters. Outside adjusters include those in the Auto Field and Property Field areas. In general, such adjusters do not report to a specific office although they are officially assigned to one of the MCOs. These adjusters work with less immediate supervision than inside adjusters, who spend a significant amount of their work day in an MCO. Auto Field adjusters inspect vehicles located at auto body shops and claimants’ homes to evaluate claimed damages and negotiate settlements. Property Field adjusters inspect losses, evaluate coverage and cost of repair, and negotiate settlements with homeowners or small businesses. Both
types of field adjusters obtain their assignments from the “Workforce Management System” or “WFMS,” a software system available on the laptop computers used by these adjusters. WFMS is reportedly designed to facilitate an eight-hour workday by scheduling a set number of inspections to be completed each day, taking into account the expected time per inspection, the location of the inspection and the anticipated travel time to and from that location. WFMS also inserts a one-hour block of unscheduled
time in the middle of the work day in anticipation of the meal and rest breaks that are to be provided to claims adjusters.
Inside adjusters handle claims from within the MCO; they do not perform on-site inspections. In general, inside adjusters are subject to more immediate supervision and more interaction with their FPLs and MCMs. The work schedules, and sometimes meal breaks, of inside adjusters are set by their FPLs to ensure sufficient coverage of the work of the MCO, including an ability to answer and respond to telephonic inquiries received at the MCO.

According to Defendant, whether an adjuster works overtime and the reasons for such overtime may vary significantly from adjuster to adjuster, depending on the type of claims the adjuster is handling and whether the adjuster performs his or her work in an office or in the field. Defendant also contends that the job duties and volume of work of adjusters vary according to the type of claim. For example, an Auto Field adjuster who has to travel to work in the field is assigned appointments based on factors such as the distance between appointments, the type of appointment and date of the claim. Some
adjusters receive fewer assigned appointments because they must drive longer distances between appointments. Similarly, different types of appointments require different amounts of time to complete.
For example, a total loss appointment is scheduled for two hours while a supplemental appointment is scheduled for only 55 minutes.
Another factor that affects the workload of adjusters is whether the claimant is represented by an attorney. Adjusters dealing with claimants who have not retained counsel investigate claims, make liability decisions and settlement offers, and obtain and review medical bills and files. Adjusters who deal with claimants who are represented by counsel spend more time in the field because their cases are in litigation. External factors, such as the season, weather, natural disasters, and geographic region, also affect workload.

C. Workload Balancing Measures
Since 2008, Allstate has implemented formal workload balancing measures facilitated by a computer system called NextGen. This system distributes new claims files to adjusters depending on their respective skill sets, geographic locations and workloads. Before Nextgen was put into service, each MCO would have a “controller” who would manually distribute new claims among the adjusters at that location. MCMs could adjust caseloads within their respective MCOs based on their own informal procedures. Since the implementation of NextGen, adjusters receive new claims on a rotational basis among adjusters in the same product segments within either the entire Southern California or NorthernCalifornia region.

D. Plaintiff’s Background
From 2006 until his termination in September 2010, Plaintiff worked as a casualty adjuster in the Diamond Bar MCO. He reported to four different FPLs during this period: Silvia Luevano, Karen Carpenter, Maria Gazzoul and Karen Cohn. Dwight Oylear was the Diamond Bar MCM. Plaintiff was assigned to handle Minor Impact Soft Tissue claims (“MIST”). MIST claims have “fairly quick turnover with little possibility of injury, so they had a lower level of complexity.” Jimenez Depo. 38:25-39:8, Paley Decl., Exh. L, Dkt. 83-2. Jimenez handled both represented and unrepresented claims, and admits that
his schedule from day-to-day varied “without a question.” Id. at 39:9-14, 66:22-67:13.

E. Reclassification from Salaried to Hourly
In early 2005, Allstate reclassified all California claims adjusters from “salaried,” i.e., exempt from the 40-hour work week and resulting overtime rules, to “hourly,” i.e., not exempt from the same 40-hour work week and overtime rules. This reclassification was the product of a misclassification wageand-hour lawsuit. Cohn Depo. 54:4-21, Wheeler Decl., Exh. C; Lewkoski Depo. 7:19-24, Wheeler Decl.,Exh. D, Dkt. 67-2. Before the reclassification, claims adjusters worked as many hours as necessary to keep up with their respective caseloads. According to the allegations made in the aforementioned
litigation, this often required work of more than eight hours per day and 40 hours per week. Ruiz Depo. 108:19-109:14, Wheeler Decl., Exh. B, Dkt. 67-2. Despite the 2005 reclassification, the compensation of claims adjusters is still referred to as a “salary,” which is reflected in an annual dollar amount. Oylear Depo. 84:3-20, Wheeler Decl., Exh. A; Ruiz Depo. 21:11-25, Wheeler Decl., Exh. B, Dkt. 67-2. Allstate does not publish or advertise claims adjusters’ hourly compensation rates either to existing or potential
claims adjusters; instead, adjusters are paid within pre-set “salary bands.” Ruiz Depo. 21:11-25, Wheeler Decl., Exh. B; Gilbert Depo. 31:4-6, 32:23-33:6, Wheeler Decl., Exh. F, Dkt. 67-2. Thus, despite the reclassification, claims adjusters are generally paid what is labeled a “salary” based on the premise that they work 40 hours per week.

F. Time Recording
Since the reclassification, Allstate has not had its adjusters prepare and submit time cards or punch time clocks to keep track of their time. Ruiz Depo. 86:6-9, Wheeler Decl., Exh. B; Lewkoski Depo. 29:21-25, Wheeler Decl., Exh. D, Dkt. 67-2. Instead, time records are prepared by those managing the adjusters. These time cards are set to a default of eight hours per day and 40 hours per week. All California claims adjusters are paid a de facto salary that assumes they worked the standard eight hours per day and 40 hours per week. Any time over that set schedule is considered a timekeeping “exception” or “deviation” unless it is “pay-neutral.” Oylear Depo. 37:7-14, Wheeler Decl.,
Exh. A; Collins Depo. 34:20-35:19, 39:7-41:22, Wheeler Decl., Exh. E, Dkt. 67-2.
Claims adjusters are expected to justify any “non-pay-neutral” deviations from the eight-hour and 40-hour time periods to their managers. No evidence has been presented that there is a policy that calls for the managers to change these default settings on their own initiative based on their potential observation of the time of an adjuster’s arrival and departure from a shift. The evidence presented does show, however, that a manager is to make an adjustment when an employee’s request to work overtime or to leave prior to the end of a particular shift is approved. In sum, Allstate does not have claims adjusters report their own overtime and other schedule exceptions, and instead relies
exclusively on managers to input overtime and premium pay requests. Collins Depo. 34:20-35:19, 84:2- 23, 86:23-87:6, Wheeler Decl., Exh. E; Gilbert Depo. 57:12-58:8, 119:2-9, Wheeler Decl., Exh. F; Cohn Depo. 47:6-9, Wheeler Decl., Exh. C, Dkt. 67-2.

Most claims adjusters log in and out of multiple computer and telephone systems in connection with the start and end of their workdays. However, Allstate does not compare the time reported on their adjusters’ time cards with the log in and out times that may be reflected on these systems. Ruiz Depo. 86:110-91:25, 138:8-11, Wheeler Decl., Exh. B,
Dkt. 67-2.

G. Overtime Approval Process
The managers of each of the 13 California MCOs have been trained to use the same policies and procedures for the payment of overtime to California claims adjusters. Lewkoski Depo. 90:20-91:6, 156:10-17, Wheeler Decl., Exh. D, Dkt. 67-2. If a claims adjuster reports an overtime non-pay-neutral exception, there are two ways that such a pay deviation can be recorded in Allstate’s timekeeping system. Thus, it can be entered by either the claims adjuster’s manager or the MCO’s administrative assistant. Id.
Although this system requires management approval before the recording of any overtime, the parties dispute whether managers, and specifically MCMs, are tasked with staying within an annual operations budget that includes overtime pay. Plaintiff contends that the performance evaluations of, and resulting bonuses to, MCMs are dependent on how closely an MCM conforms to the set annual budget; this would mean that an MCM would have a disincentive to approve and report overtime. Ruiz Depo. 131:13-18, 132:16-19, 136:14-137:16, Wheeler Decl., Exh. B, Dkt. 67-2. Defendant responds
that there are no labor budgets for overtime. Thus, MCMs are not held to overtime budgets and are not disciplined for exceeding any such nonexistent budgets. Ruiz Depo. 132:20-24, Wheeler Decl., Exh. B,Dkt. 67-2; Gilbert Depo. 109:10-17, 110:1-16, Paley Decl., Exh. G, Dkt. 83-2; Bleifer Depo. 136:14-21; 142:9-143:5, 154:3-18, Paley Decl., Exh. C, Dkt. 83-1; Morrison Depo. 144:12-24, 146:2-19, 166:14-22, Paley Decl., Exh. R, Dkt. 83-3; Oylear Depo. 124:15-125:2, Paley Decl., Exh. S, Dkt. 83-3; Cohn Depo. 72:17-22, 116:1-10, Paley Decl., Exh. E, Dkt. 83-1; Lewkoski Depo. 85:12-87:20, Paley Decl., Exh. P, Dkt. 83-3.

Considering the cited testimony as a whole, it is undisputed that each MCO has a compensation budget, which is nonnegotiable, and that overtime compensation is included within that total compensation budget. Ruiz Depo. 131:13-18, 132:16-24, Wheeler Decl., Exh. B, Dkt. 67-2. However, there is no specific limit as to how much of that total compensation budget can be used to pay overtime. Id. at 132:16-24. Nonetheless, there likely is a functional limit on overtime. Thus, because the overall
compensation budget is of a set amount, logic dictates that any excessive amounts of overtime would likely lead to a budget overrun.

III. ANALYSIS
A. The Underlying Claims
Plaintiff seeks to certify this proposed class with respect to the following causes of action
advanced in his First Amended Complaint (“FAC”): (i) failure to pay wages for all hours worked, including unpaid overtime in violation of California Labor Code §§ 510 and 1198; (ii) violation of California Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums); (iii) violation of California Labor Code § 226.7 (unpaid rest period premiums); (iv) violation of California Labor Code §§ 201 and 202 (wages not timely paid upon termination); (v) violation of California Labor Code § 226(a) (noncompliant wage statements); and (vi) violation of California Business and Professions Code § 17200, et
seq. Dkt. 27. Each of the subsequent causes of action is derivative of Plaintiff’s first three claims for failure to pay overtime and failure to compensate for missed meal and rest periods.

B. Class Action Standards
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes et al., 131 S. Ct. 2541, 2550 (2011).
Under Rule 23 of the Federal Rules of Civil Procedure, a class “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). That “rigorous analysis” will “frequently” include “some overlap with the merits of the plaintiff’s underlying claim.” Dukes, 131 S. Ct. at 2551.
In seeking class certification, a putative class representative plaintiff must establish that the proposed class meets each of the prerequisites of Rule 23(a). Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). These are: (i) numerosity, (ii) commonality, (iii) typicality, and (iv) adequacy of representation. FED. R. CIV. P. 23(a). Further, “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is,
he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 131 S. Ct. at 2551 (italics in original). Once these four prerequisites are satisfied, a court must consider whether the proposed class can be maintained under the standards of Rule 23(b). See, e.g., Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).

C. Rule 23(a) Prerequisites
1. Numerosity Rule 23(a)(1) requires that, in order to be certified, a class must be “so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). “Impracticability does not mean impossibility, but only the difficulty or inconvenience of joining all members of the class.” Harris v. Palm Springs Alpine

Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964). No specific number of members is needed to warrant a class action. Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). Here, the parties do not dispute that the putative class contains approximately 1300 claims adjusters. Accordingly, the numerosity requirement is satisfied.
2. Commonality
a) Legal Standard Rule 23(a)(2) requires that the case involve “questions of law or fact common to the class.” FED.
R. CIV. P. 23(a)(2). “All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The commonality requirement is satisfied only by a common question “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct. at 2551. “Requiring there to be common questions of law or fact prior to certifying a class serves chiefly two purposes: (1) ensuring that absentee members are fairly and adequately represented; and (2) ensuring practical and efficient case management.” Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998).

b) Unpaid Overtime Claim
(1) Legal Standard
Under California law, it is the employer’s obligation to pay each employee for all time the
employer “engage[s], suffer[s] or permit[s]” such employee to work. Morillion v. Royal Packing Co., 22 Cal. 4th 575, 586 (2000). Thus, to prove the merits of an unpaid overtime claim, a plaintiff must prove that “(1) he performed work for which he did not receive compensation; (2) that defendants knew or should have known that plaintiff did so; but that (3) the defendants stood ‘idly by.’” Adoma v. The Univ. of Phoenix, Inc., 270 F.R.D. 543, 548 (E.D. Cal. 2010) (quoting Lindow v. United States, 738 F.2d
1057, 1060-62 (9th Cir. 1984)).
(2) Plaintiff’s Arguments
Plaintiff’s theory of the case, which he offers in support of the establishment of commonality, is as follows: Since the reclassification of claims adjusters from exempt to non-exempt employees, Defendant has attempted to avoid making any actual changes to the manner of payment and amounts its claims adjusters are paid. It does so by assuming that employees always work only 40 hours per week, by creating a culture that discourages the reporting of overtime and by turning a “blind eye” to unpaid overtime actually worked. Specifically, at each of the 13 MCOs, overtime pay is controlled by
managers, who are the only persons with the power to approve overtime and ensure that it is compensated. However, the managers have incentives to avoid paying overtime because they want to meet their operating budgets. Thus, based on the legal standard explained above, Plaintiff contends that common questions exist regarding: (i) whether class members generally worked overtime without receiving compensation as a result of Defendant’s unofficial policy of discouraging the reporting of such overtime, Defendant’s failure to reduce class members’ workload after the reclassification, and Defendant’s policy of treating their pay as salaries for which overtime was an “exception”; (ii) whether
Defendant knew or should have known that class members did so; and (iii) whether Defendant stood idly by without compensating class members for such overtime.
Plaintiff contends that putative class members are similarly situated and commonality is satisfied on the following bases: (i) each had his or her job reclassified from exempt to non-exempt in January 2005; (ii) each allegedly worked overtime leading up to the reclassification; (iii) the common work load for claims adjusters did not change after the reclassification; (iv) despite being classified as hourly employees after reclassification, each was still paid for a set 40-hour week, which is referred to internally as a “salary,” and any overtime had to be reported through a manager as an “exception”; (v) FPLs, with the knowledge of MCMs, explicitly instructed claims adjusters that overtime was “cancelled” and “no longer allowed”; (vi) all timekeeping and tracking methods are uniform in that overtime is always either approved in advance by a manger or reported after the fact, again to a manager, who has the sole power to enter such overtime; (vii) each claims adjuster was prevented from reporting his or her own time, and managers were the only personnel authorized to record overtime “exceptions”; (viii) the clear policy preference was that all overtime should be “pre-approved”; (ix) when adjusters attempted to get approval for overtime, they were encouraged to find another way to accomplish their work and be more efficient, and were generally discouraged from requesting any such overtime; and (x) Defendant has access to records of the time worked by each claims adjuster through various contemporaneous sources, such as telephone and computer logins and building entry data, but does not use them to calculate time worked or to confirm the accuracy of the time card data.
(3) Defendant’s Arguments
Defendant responds by relying on Dukes to argue that Plaintiff has failed to show the requisite “glue” that holds together the disparate claims of the putative class. Defendant’s primary arguments are that: (i) Allstate’s policies are lawful because they mandate that Allstate compensate employees for all overtime worked; (ii) the xperiences of seven adjusters who worked off-the-clock to cover for their performance problems and who voluntarily skipped meal and rest breaks are not representative of the experiences of all 1180 claims adjusters who have worked in 13 different offices, under different FPLs
and MCMs, on different types of claims, and in different physical settings; further, there is no evidence that any adjusters other than Plaintiff and the seven other declarants failed accurately to record their time, or that they failed to do so for the same reasons; and (iv) in light of the Supreme Court’s decision in Dukes, Plaintiff cannot rely on statistical sampling to create commonality where there is none.
(4) Defendant’s First Argument: Allstate’s Lawful Policies
Defendant contends that its compensation policies are lawful. Thus, Defendant asserts that it is Allstate’s policy to compensate adjusters for all time actually worked. Accordingly, any liability must be based on deviations from that policy, which are not common across the class. Defendant presents the testimony of a number of putative class members and their managers to demonstrate that adjusters were always paid for reported, worked overtime, and that some adjusters claim they never worked without compensation and were provided with breaks, which contradicts any claim of a common policy.2
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. Thus, Plaintiff and other declarants who support Plaintiff’s motion admit that they have been paid overtime; they do not claim that overtime is never paid. Instead, they assert that it was Allstate’s common practice not to follow its policy requiring employee compensation for all time worked. If Plaintiff is correct that such a practice existed, this practice could be a common source of putative class members’ off-the-clock work. See Mahoney v. Farmers Ins. Exch., No. 4:09-cv-2327, 2011 WL 4458513, *9 (S.D. Tex. Sept. 23, 2011) (“[P]laintiffs here have submitted significant evidence regarding their supervisors’ informal pressure not to request overtime, actual refusal to grant overtime, and explicit instruction… how to avoid detection of ‘off-the-clock’ work. These practices amount, in our estimation, to evidence of a ‘policy-to-violate-the-policy.’”); see also Brinker Rest. Corp. v. Super. Ct., __ Cal. 4th __, No. S166350, 2012 WL 1216356, *26 (Apr. 12, 2012) (noting that the employee’s “off-the-clock” claim lacked commonality because the employee had not “presented substantial evidence of a systematic company policy to pressure or require employees to work off the clock, a distinction that differentiates this case from those [the employee] relies upon in which off-theclock classes have been certified”).

2 Cohn Depo. 73:6-16, 115:17-25, 149:15-151:1, 151:6-24, 154:6-14, 184:19-185:22, Paley Decl., Exh. E, Dkt. 83-
1; Collins Depo. 35:11-24, 39:7-22, 43:5-23, Paley Decl., Exh. F, Dkt. 83-1; Gilbert Depo. 44:6-19, 51:25-52:11,
65:15-25, 128:24-129:1, 150:24-151:12, 151:20-25, 152:1-3, 153:1-9, Paley Decl., Exh. G, Dkt. 83-2; Jimenez
Depo. 89:11-22, 120:1-4, 120:16-20, 121:9-23, 122:24-123:12, 124:10-13, 128:6-14, Paley Decl., Exh. L, Dkt. 83-
2; Lewkoski Depo. 90:19-91:4, Paley Decl., Exh. P, Dkt. 83-3; Morrison Depo. 136:12-137:4, Paley Decl., Exh. R,
Dkt. 83-3; Oylear Depo. 44:23-46:4, Paley Decl., Exh. S, Dkt. 83-3; Ray Depo. 33:5-7, 80:5-19, Paley Decl., Exh.
T, Dkt. 83-3; Rubinoff Depo. 41:1-10, 47:18-23, 69:4-8, 110:10-18, 112:20-24, 114:22-24; 116:16-18, 119:9-15,
119:24-120:1, Paley Decl., Exh. U, Dkt. 83-3; Saunders Depo. 60:5-13, 62:3-13, Paley Decl., Exh. W, Dkt. 83-4;
Vargas Depo. 40:4-42:8, 49:20-50:13, Paley Decl., Exh. Y, Dkt. 83-4.

(a) Plaintiff’s Evidence
Plaintiff has presented sufficient evidence to support the inference that Allstate has a common practice of not following its overtime policy. Although Defendant has presented testimony indicating that reported hours were always paid, such testimony does not directly negate Plaintiff’s contention that officially “unreported” hours went unpaid despite Allstate’s knowledge of those hours. There is evidence that Defendant’s statewide policy was to limit the ability to input overtime to managers, which creates common control. To “manage” overtime – i.e., limit “non-pay-neutral” expenditures such as overtime –
MCMs and FPLs were “keeping tabs” on overtime requests. Oylear Depo. 125:3-21, 130:6-131:16, Wheeler Decl., Exh. A; Ruiz Depo. 72:16-73:12, Wheeler Decl., Exh. B; Cohn Depo. 154:15-155:16, Wheeler Decl., Exh. C, Dkt. 67-2. This directive to “manage” overtime came directly from the head of claims for California, Lewkoski, who monitors the overtime expenditure levels per MCO and displayed the overtime expenditures per office at managers’ meetings. Ruiz Depo. 121:16-122:14, 127:8-128:2,
Wheeler Decl., Exh. B, Dkt. 67-2. And, Lewkoski testified that when a claims adjuster reports overtime to his or her manager, he or she should be ready to explain why the time is needed. Lewkoski Depo. 37:10-13, Wheeler Decl., Exh. D, Dkt. 67-2.
Plaintiff also has presented evidence that MCMs make it clear to the claims adjusters that repeated overtime requests are synonymous with “performance issues” that management must address. Gilbert Depo. 67:11-69:4, 70:4-10, 73:17-74:25, 111:5-10, 116:14-18, Wheeler Decl., Exh. F, Dkt. 67-2 (“In cases where the adjuster is having performance issues of doing the job, we will ask them not to put in the overtime.”); Collins Depo. 110:11-111:5, Wheeler Decl., Exh. E, Dkt. 67-2. Similarly, overtime pre-approval requests are often met with “suggestions” on how a claims adjuster can be better trained on “efficiency” and alternative methods of getting the work done that do not require overtime.
Ruiz Depo. 66:9-67:15, Wheeler Decl., Exh. B; Gilbert Depo. 73:17-74:25, Wheeler Decl., Exh. F, Dkt. 67-2.

Plaintiff also relies on the declarations of seven claims adjusters who state that these
“management methods” have a profound effect on the actual adjusters’ work behavior. Specifically, Allstate’s general message that only underperforming, “inefficient” adjusters would require overtime to keep up with their workloads made adjusters reluctant to report overtime because they feared being perceived as underperformers. Beck Decl. ¶¶ 10-11; Copes Decl. ¶ 8; Hall Decl. ¶¶ 9-10; Ray Decl. ¶¶ 6-8; Rubinoff Decl. ¶ 10; Saunders Decl. ¶ 7; Vargas Decl. ¶¶ 8, 10; Dkt. 67-3. One of Plaintiff’s declarants produced an email from her FPL with the subject line “Overtime is cancelled! Effective
Immediately.” Wheeler Reply Decl., Exh. A, Dkt. 88-1. The e-mail concludes by stating, “No overtime and no exceptions!” Id. Plaintiff contends that his seven declarants demonstrate that this is not an isolated problem because they are from different MCOs and worked under different managers.

There are also common questions pertaining to what Defendant knew or should have known. As in Adoma, 270 F.R.D. 543, the common question presented is whether knowledge can be imputed to Defendant in light of its access to time records in the form of phone and computer logins and building entry data. Further, some of Plaintiff’s declarants testify that their managers saw them working overtime either before or after their scheduled shifts or on the weekend, or otherwise were aware of such off-theclock
work, and did not inquire as to whether overtime was being requested for such time or take any other action, despite the fact that they, as managers, have the exclusive power to report overtime. Beck Decl. ¶ 8; Hall Decl. ¶ 7; Ray Decl. ¶ 8; Saunders Decl. ¶ 7; Vargas Decl. ¶ 9; Dkt. 67-3.
(b) Defendant’s Rebuttal Evidence
To rebut Plaintiff’s evidence, Defendant presents deposition testimony from Plaintiff’s declarants in which such declarants state that they were never disciplined for asking to work overtime and were not aware of any other adjusters who had been subjected to discipline for doing so.3 Defendant also presents a number of competing declarations, 18 of which were made by current Allstate employees and putative class members. These declarations and deposition testimony are advanced to support the claim that other putative class members were capable of performing their work within an eight-hour
work day and 40-hour week, and that they did not work off-the-clock or feel pressure to work without compensation. See Appendix, Dkt. 84. Plaintiff has moved to strike a number of these declarations.
Dkt. 90-101. Plaintiff also contends that the Court should discount these declarations “because of the risk of bias and coercion inherent in that testimony.” Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, *3 (W.D. Wash. Sept. 12, 2006). Finally, Plaintiff presents evidence to support his concerns regarding bias and coercion, including testimony indicating that each declaration was drafted by Defendant’s attorneys,4 some of the declarants were never told how their declarations were going to
be used or that they would be used to defend Allstate in this case,5 many had no idea what this lawsuit

3 Beck Depo. 50:1-6, Paley Decl., Exh. A, Dkt. 83-1; Hall Depo. 67:5-10, 67:18-20, Paley Decl., Exh. I, Dkt. 83-2;
Ray Depo. 52:12-53:24, 56:19-21, Paley Decl., Exh. T, Dkt. 83-3; Rubinoff Depo. 100:19-101:4, Paley Decl., Exh.
U, Dkt. 83-3; Saunders Depo. 54:14-18, 56:4-6, Paley Decl., Exh. W, Dkt. 83-4; Vargas Depo. 44:21-45:4, Paley
Decl., Exh. Y, Dkt. 83-4.
4 Abich Depo. 49:17-18, Amd. Wheeler Decl., Exh. I, Dkt. 88-2; Diego Depo. 132:20-23, 133:13-134:15, 135:2-10,
140:4-9, 140:12-17, Amd. Wheeler Decl, Exh. K, Dkt. 88-2; Gehl Depo. 58:23-59:5, Amd. Wheeler Decl., Exh. M,
Dkt. 88-3; Keller Depo. 84:4-6, 84:11-22, Amd. Wheeler Decl., Exh. N, Dkt. 88-3; Lohr Depo. 103:20-22, 113:10-
17, Amd. Wheeler Decl., Exh. O, Dkt. 88-3; Oseguera Depo. 55:24-56:1, Amd. Wheeler Decl., Exh. S, Dkt. 88-4;
Perry Depo. 106:16-107:5, 114:16-21, 115:24-116:1, Amd. Wheeler Decl., Exh. T, Dkt. 88-5; Predmore Depo.
102:5-9, 54:17-55:5, Amd. Wheeler Decl., Exh. U, Dkt. 88-5; Tomasello Depo. 78:4-12, Amd. Wheeler Decl., Exh.
V, Dkt. 88-5; Wilson Depo. 117:18-118:3, Amd. Wheeler Decl, Exh. W, Dkt. 88-5.
5 Bedard Depo. 77:20-22, Amd. Wheeler Decl., Exh. J, Dkt. 88-2; Diego Depo. 6:8-19, 38:20-39:14, 39:18-20,
148:4-17, 149:2-151:14, Amd. Wheeler Decl., Exh. K, Dkt. 88-2; Lynch Depo. 24:21-23, 30:11-13, Amd. Wheeler
Decl., Exh. P, Dkt. 88-3; Mueller Depo. 39:7-9, Amd. Wheeler Decl., Exh. Q, Dkt. 88-3; Oseguera Depo. 68:15-22,
72:6-10, Amd. Wheeler Decl., Exh. S, Dkt. 88-4; Perry Depo. 117:7-16, Amd. Wheeler Decl., Exh. T, Dkt. 88-4;
Predmore Depo. 36:2-4, 52:17-23, Amd. Wheeler Decl., Exh. U, Dkt. 88-5.

was about or why they had to sign the declarations,6 some were never told they were potential class members in this case,7 and others were not adequately informed of their rights when signing the declarations.8
(c) Analysis
After considering the evidence presented by each party, the Court DENIES Plaintiff’s motions to strike the declarations of Daniel J. Slottje, Philip E. Tetlock, Cheryl Wilson, Elissa Predmore, Harley Thompson, Jolyn Elliott, Lori Hansen, Matthew Wilson, and Salvador Diego. The Court GRANTS Defendant’s motion to strike the declaration of Dr. William Bielby, and DENIES Defendant’s motions to strike the declarations of Dr. Jon Krosnick and Gina Copes. As stated in the Court’s February 6, 2012 Order, the Court DENIES Plaintiff’s motions to strike the declarations of Ryan Huskey and Dian Riser,
and GRANTS Plaintiff’s motion to strike the declaration of Stacy Goopio. Finally, the Court GRANTS Plaintiff’s ex parte application to strike the supplemental declarations of Eileen Zorc and Sheryl Skibbe. In light of the admissible evidence discussed above, the Court finds that Plaintiff has presented sufficient evidence to demonstrate affirmatively that the following common questions are present in this action: (i) whether Defendant had a common and widespread practice of not following its policies regarding overtime; (ii) whether Defendant knew or should have known that claims adjusters were
working off-the-clock without compensation; and (iii) whether Allstate managers who were so informed elected to take no corrective steps with respect to adjusters who were working overtime without compensation.
(5) Defendant’s Second Argument:
Whether Plaintiff and Declarants Are Representative of the Putative Class Defendant next contends that the experiences of Plaintiff and seven adjusters who claim to have worked off-the-clock are not representative of other adjusters. Instead, Defendant claims that these seven adjusters had performance problems, were inefficient and are not proper representatives for 1180 claims adjusters who worked in 13 different offices, under different FPLs and MCMs, on

6 Abich Depo. 25:6-11, Amd. Wheeler Decl., Exh. I, Dkt. 88-2; Gehl Depo. 22:3-6, 22:14-17, 23:2-6, 67:14-16,
Amd. Wheeler Decl., Exh. M, Dkt. 88-3; Lohr Depo. 14:3-17, 31:14-21, 32:8-19, 45:12-20, 109:22-110:4, Amd.
Wheeler Decl., Exh. O, Dkt. 88-3; Oseguera Depo. 18:1-3, 50:15-17, 53:11-15, 54:7-13, 54:24-55:17, 62:6-10,
Amd. Wheeler Decl., Exh. S, Dkt. 88-4; Newman Depo. 19:4-8, Amd. Wheeler Decl., Exh. R, Dkt. 88-4; Perry
Depo. 93:23-94:7, 100:24-101:5, 101:9-13, 116:21-25, Amd. Wheeler Decl., Exh. T, Dkt. 88-5; Tomasello Depo.
83:1-3, Amd. Wheeler Decl., Exh. V, Dkt. 88-5.
7 Bedard Depo. 50:17-21, Amd. Wheeler Decl., Exh. J, Dkt. 88-2; Oseguera Depo. 75:16-22, Amd. Wheeler Decl.,
Exh. S, Dkt. 88-4; Predmore Depo. 34:19-23, 35:2-15, Amd. Wheeler Decl., Exh. U, Dkt. 88-5.
8 Abich Depo. 165:3-168:8, 169:19-23, 170:10-12, Amd. Wheeler Decl., Exh. I, Dkt. 88-2; Perry Depo. 99:24-
100:10, 104:24-105:1, 105:8-11, 117:1-6, Amd. Wheeler Decl., Exh. T, Dkt. 88-5; Predmore Depo. 44:17-24,
45:9-12, Amd. Wheeler Decl., Exh. U, Dkt. 88-5.

different types of claims, and in different physical settings. Further, Defendant contends that there is no evidence that any adjusters other than Plaintiff and the seven declarants failed accurately to record their time, or that they failed to do so for the same reasons, i.e., the alleged corporate practice of not approving overtime and characterizing overtime as indicative of poor performance.
Plaintiff rebuts this allegation by referring to the deposition testimony of Defendant’s declarants, who testified that: (i) they cannot complete their work within an eight-hour day;9 (ii) they routinely work overtime in order to get their jobs done;10 (iii) Allstate’s timekeeping policies, overtime policies, and meal and rest break policies apply uniformly to all claims adjusters throughout California;11 (iv) managers “[i]nsist” that overtime be pre-approved unless they are only delayed for a few minutes past the end of their shift on a customer call;12 (v) they must explain why overtime is needed;13 and (vi) FPLs
will coach and evaluate them if they work too much overtime.14 Further, declarant Kristi Tomasello, who is a current FPL, testified that overtime is monitored, and that she was instructed by her supervisor to keep the amount of overtime low because her office’s overtime budget was “out of pattern with the other offices.” Tomasello Depo. 78:18-20, 79:14-80:5, 80:15-19, Amd. Wheeler Decl., Exh. V, Dkt. 88-5.
Other FPL declarants were also told to keep their claims adjusters’ overtime down. Keller Depo.

100:24-101:3, Amd. Wheeler Decl., Exh. N, Dkt. 88-3; Perry Depo. 64:2-20, 118:9-11, 130:12-15, Amd.
Wheeler Decl., Exh. T, Dkt. 88-5.
9 Diego Depo. 29:11-18, 30:5-14, 153:7-9, Amd. Wheeler Decl., Exh. K, Dkt. 88-2; Keller Depo. 44:7-13, Amd.
Wheeler Decl., Exh. N, Dkt. 88-3; Newman Depo. 65:14-23, Amd. Wheeler Decl., Exh. R, Dkt. 88-4; Perry Depo.
19:16-20:8, 22:15-23:14, 29:11-15, 43:19-44:3, 45:1-47:10, 64:17-20, 64:24-66:8, 123:13-20, 124:11-16, 125:4-
25, 126:9-22, 127:17-25, 131:18-132:2, Amd. Wheeler Decl., Exh. T, Dkt. 88-5; Tomasello Depo. 34:18-23, 43:19-
44:13, Amd. Wheeler Decl., Exh. V, Dkt. 88-5; Wilson Depo. 170:1-7, Amd. Wheeler Decl., Exh. W, Dkt. 88-6;
Gehl Depo. 122:17-123:5, Amd. Wheeler Decl., Exh. M, Dkt. 88-3.
10 Abich Depo. 76:5-12, Amd. Wheeler Decl., Exh. I, Dkt. 88-2; Oseguera Depo. 128:6-8, 128:25-129:4, Amd.
Wheeler Decl., Exh. T, Dkt. 88-5; Predmore Depo. 58:3-5, Amd. Wheeler Decl., Exh. U, Dkt. 88-5.
11 Diego Depo. 22:9-12, 62:2-67:15, 77:19-78:2; 139:12-15, 169:5-10, Amd. Wheeler Decl., Exh. K, Dkt. 88-2;
Keller Depo. 39:20-24, 53:25-54:11, 103:1-104:21, Amd. Wheeler Decl., Exh. N, Dkt. 88-3; Oseguera Depo.
108:12-24, Amd. Wheeler Decl., Exh. S, Dkt. 88-4; Newman Depo. 75:24-76:13, Amd. Wheeler Decl., Exh. R,
Dkt. 88-4; Tomasello Depo. 102:1-8, Amd. Wheeler Decl., Exh. V, Dkt. 88-5; Wilson Depo. 78:2-22, Amd.
Wheeler Decl., Exh. W, Dkt. 88-6.
12 Abich Depo. 84:3-8, Amd. Wheeler Decl., Exh. I, Dkt. 88-2; Diego Depo. 50:15-51:16, 62:2-67:15, 151:21-
152:4, 157:18-21, 167:1-168:13, 169:5-10, 169:11-17, 170:1-11, Amd. Wheeler Decl., Exh. K; Gehl Depo. 105:6-
8, 125:3-5, 126:9-13, Amd. Wheeler Decl., Exh. M, Dkt. 88-2; Oseguera Depo. 119:15-17, Amd. Wheeler Decl.,
Exh. S, Dkt. 88-4; Newman Depo. 59:13-23, 95:20-25, 65:24-66:9, Amd. Wheeler Decl., Exh. R; Perry Depo.
61:5-16, 64:12-16, 83:14-17, 127:23-25, 131:6-11, Amd. Wheeler Decl., Exh. T; Tomasello Depo. 45:16-46:1,
47:3-20, 92:9-14, Amd. Wheeler Decl., Exh. V, Dkt. 88-5; Wilson Depo. 161:3-10, 161:17-162:1, 170:13-18, Amd.
Wheeler Decl., Exh. W, Dkt. 88-6.
13 Diego Depo. 62:2-8, 158:1-4, Amd. Wheeler Decl., Exh. K, Dkt. 88-2.
14 Keller Depo. 50:7-13, Amd. Wheeler Decl., Exh. N, Dkt. 88-3; Wilson Depo. 164:20-24, 167:8-168:9, 170:13-18,
171:23-172:3, Amd. Wheeler Decl., Exh. W, Dkt. 88-6.

This rebuttal evidence tends to show that the experience of Plaintiff and those whose
declarations he presents were not isolated occurrences, and that the alleged practice may be one that is state-wide. The Court need not determine the merits of Plaintiff’s theory at the class certification stage; instead, it simply must be satisfied that Plaintiff has met his burden of demonstrating commonality.
Defendant’s parallel argument -- that the class is overbroad and lacks commonality because it includes all different types of claims adjusters, including inside and outside adjusters, adjusters in different offices, and adjusters working under different supervisors -- has some merit. However, the competing evidence that has been presented indicates that the alleged practice of discouraging overtime has been applied with equal force to all claims adjusters in California. Perhaps the adjusters who are most different from Plaintiff in terms of day-to-day work are outside adjusters; however, two of Plaintiff’s declarants worked as field adjusters, and they nonetheless testify that they felt the same
pressure to work unreported overtime as those who worked primarily in offices. Rubinoff Decl. ¶¶ 2, 9- 10; Copes Decl. ¶¶ 2, 6-8; Dkt. 67-3. Thus, outside adjusters are sufficiently similarly situated to Plaintiff because they were also subject to the rules regarding pre-approval of overtime, which under the evidence proffered by Plaintiff, was given reluctantly, if at all.
Because all managers were allegedly implementing this state-wide policy, their discretion was limited. See Ross v. RBS Citizens, N.A., 667 F.3d 900, 908-910 (7th Cir. 2012) (finding that a statewide overtime class was proper, and distinguishing Dukes on the basis that only some lesser amount of discretion was at issue, i.e., the discretion associated with the details of enacting a company-wide policy or directive). Thus, the Court is not persuaded that the dispersion of employees across different offices and under the supervision of different managers is sufficient to defeat commonality.
(6) Defendant’s Third Argument: Availability of Statistical Sampling

(a) Plaintiff’s Position and Expert Testimony
Plaintiff relies on Adoma, 270 F.R.D. 543, to support his commonality argument through the proposition that the class claims can be adjudicated through statistical sampling and representative testimony. In Adoma, the district court certified an “off-the-clock” class of university enrollment counselors. The class member counselors in Adoma used an Avaya telephone system that recorded the counselors’ login and logout times, as well as times the employees were away from their desks for breaks and lunches. Id. at 548-49. The court certified the class, noting that the Avaya telephone records, while not perfect reflections of time actually worked, gave rise to the common question of “whether the Avaya system gave defendants at least constructive knowledge of the employee
overtime….” Id. at 551. However, in determining that this class was appropriate for certification, the court relied extensively on Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), which permitted a representative inquiry and statistical sampling to determine class members’ actual time worked. The Ninth Circuit affirmed the continuing validity of Hilao in Dukes v. Wal-Mart, 603 F.3d 571, 625-27 (9th Cir. 2010), a decision that was later reversed by the Supreme Court. This raises questions as to the continuing force of Hilao as well as the significance of this aspect of Adoma.
Plaintiff also presents expert testimony to support his statistical approach. Dr. Jon Krosnick (“Krosnick”), a professor at Stanford University and an expert in statistics and sociology, has provided testimony about the propriety of survey research methods, including how best to measure behavior and opinions through surveys and the analysis of survey data. Krosnick offers expert opinions about the feasibility of making class-wide determinations of liability and damages by using statistical sampling and class member survey data derived from random sampling. Krosnick also testifies about the specific
nature of the questions that could be posed to a representative sample of the class members, including: (i) whether, how often, and for how much time per day and per week the putative class members performed off-the-clock work in excess of eight hours per day or 40 hours per week; (ii) what experiences the putative class members had at work that contributed to their performing work off the clock; and (iii) questions to be used to assess survey accuracy. Krosnick Decl. ¶ 52, Dkt. 67-4.
Plaintiff’s second expert, Dr. William T. Bielby (“Bielby”), testifies that Allstate policies and practices resulted in significant pressure on the claims adjusters to work unreported overtime, and that Allstate knew, or should have known, about the claims adjusters’ unreported work. Bielby Decl. ¶¶ 15- 16, Dkt. 67-4. Bielby is an expert in the areas of organizational behavior and social science research methods. He draws from his expertise in these fields to conclude that three types of social science are relevant to the issues in this case: (i) organizational inertia, meaning that after the reclassification, such
inertia may have led to the carry-over of prior policies; (ii) autonomy and organizational commitment, referring to Allstate’s refusal to allow claims adjusters to report their own overtime and failure to enact contemporaneous timekeeping measures; and (iii) loose coupling between stated policies, on the one hand, and real-life practices, on the other. Id. ¶¶ 17-31.15

15 Defendant argues that this testimony should be disregarded in light of Bielby’s deposition testimony, in which
he admits that he has taken no steps to determine empirically whether any feature of any policy or procedure at
Allstate did, in fact, contribute to any particular individual not accurately reporting his or her time. Bielby Depo.
15:21-17:11, 137:3-138:14, Paley Decl., Exh. B, Dkt. 83-1. Indeed, similar testimony by Bielby was rejected by the
Supreme Court in Dukes, with the Court noting that “we can safely disregard what he has to say” because
“Bielby’s testimony does nothing to advance [plaintiff’s] case.” 131 S. Ct. at 2553-54. Similarly, here, the Court
finds Bielby’s testimony is not sufficiently relevant to the class certification inquiry. Accordingly, the Court
GRANTS Defendant’s motion to strike Bielby’s declaration.

(b) Defendant’s Opposition to this Approach
Defendant contends that Plaintiff cannot rely on statistical sampling to create commonality where there is none. In support of this position, Defendant relies on Dukes, where the Court stated:
The Court of Appeals believed that it was possible to replace such proceedings with Trial
by Formula. A sample set of the class members would be selected, as to whom liability
for sex discrimination and the backpay owing as a result would be determined in
depositions supervised by a master. The percentage of claims determined to be valid
would then be applied to the entire remaining class, and the number of (presumptively)
valid claims thus derived would be multiplied by the average backpay award in the
sample set to arrive at the entire class recovery—without further individualized
proceedings. 603 F.3d, at 625–627. We disapprove that novel project.
131 S. Ct. at 2561.
(c) Plaintiff’s Reply
Plaintiff responds through a more narrow interpretation of Dukes. Thus, Plaintiff contends that Dukes should be read to limit the use of statistical methods only when such methods would deprive the defendant of the right to litigate its individualized defenses. See id.; 5-23 MOORE’S FED. PRAC. – CIVIL § 23.46 (“[A] mathematical formula or statistical technique may not be used to compute damages if this would deprive the defendant of the right to litigate its defenses to individual claims.”). Indeed, in Mahoney, the factually similar collective action discussed above, the court addressed the issue whether the insurance company could present its individual defenses in conjunction with representative testimony, and concluded as follows:
[Defendant] argues that decertification is necessary because of the highly individualized
nature of its defenses, which include each plaintiff's knowledge of [defendant’s] policies,
whether each plaintiff was paid for overtime work, whether plaintiffs' off-the-clock
activities were compensable work, whether some of the off-the-clock work was de
minimis, whether [defendant] had actual or constructive knowledge of any off-the-clock
work performed by the plaintiffs, whether [defendant] acted in good faith, and whether
the plaintiffs' claims are time-barred. However, the Court agrees with [plaintiff] that,
based on the current record, these defenses can be adequately raised at a trial involving
representative testimony. Courts have allowed the use of representative testimony in
cases involving allegations of unpaid overtime. See, e.g., Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 687–88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946); Schultz v.
Capital Intern. Sec., Inc. 466 F.3d 298, 310 (4th Cir.2006); Grochowski v. Phoenix
Constr., 318 F.3d 80, 88 (2d Cir.2003) (“[N]ot all employees need testify in order to
prove FLSA violations or recoup back-wages”); Reich v. Gateway Press, 13 F.3d 685,
701–02 (3d Cir.1994) (“Courts commonly allow representative employees to prove

violations with respect to all employees.”); Brennan v. General Motors Acceptance
Corp., 482 F.2d 825, 829 (5th Cir.1973) (allowing representative testimony in a case
involving unpaid overtime); Thiebes v. Wal–Mart Store, Inc., 2004 U.S. Dist. LEXIS
15263, *1, 2004 WL 1688544 (D.Or. July 26, 2004); National Electro–Coatings, Inc. v.
Brock, No. C86–2188, 1988 U.S. Dist. LEXIS 16937, *8, 1988 WL 125784 (N.D.Ohio
July 13, 1988) (“Courts have consistently allowed, or even required, a small number of
employees to testify to establish a pattern of violations for a larger number of workers.”).
The Court similarly finds that Defendants [sic] will be allowed to raise all of its asserted
defenses by examining representative plaintiffs and presenting its own evidence at trial.
Mahoney, 2011 WL 4458513, at *9. Here, Plaintiff seeks to rely on a similar approach. Thus, Plaintiff contends that back pay may be awarded to non-testifying claimants on the basis of evidence adduced from a fairly representational subset, as derived from the proof standard set forth in Anderson v. Mt.
Clemens Pottery, 328 U.S. 680, 687-88 (1946), which allows proof of overtime hours “as a matter of just and reasonable inference,” a standard which may be met in the context of a group action by establishing a “pattern or practice” of overtime work by class members.
The Court reserves the issue whether damages can be calculated based on statistical sampling or some other related method. Similar damage calculations were disapproved by the Supreme Court as “Trial by Formula,” and were not permitted in Mahoney. Instead, in Mahoney, the court explicitly approved representational testimony only with respect to the liability phase of the trial, and indicated its intent to bifurcate the damages phase:
Furthermore, the Court believes that [defendant’s] concern over the extent to which each
plaintiff may have been paid for overtime hours can be resolved through bifurcation of
the trial into a liability stage and a damages stage. See Thiebes v. Wal–Mart Store, Inc.,
No. Civ. 98–802–KI, 2004 U.S. Dist. LEXIS 15263, at *1, 2004 WL 1688544 (D.Or. July
26, 2004) (noting that the court had bifurcated collective action involving allegations of
unpaid overtime and off-the-clock work into separate liability and damages trials). The
liability stage will focus on the class-wide question of whether [defendant] knew or
should have known that [claims adjusters] were working off-the-clock to comply with their
supervisors formal and informal instructions to work overtime hours without requesting
overtime payment. If liability is proven, the amount of off-the-clock hours, the amount
each plaintiff may have been paid for overtime work, and the extent to which off-theclock
work can be attributed to reasons other than [defendant’s] policies can be
evaluated at damages phase of trial.
2011 WL 4458513, at *10. Thus, in light of Dukes, Plaintiff has not met his burden of affirmatively demonstrating that statistical sampling is a proper method of calculating individual damages.
Nonetheless, this shortcoming is not sufficient to preclude class certification with respect to liability. See Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010) (“In this circuit, however, damage calculations alone cannot defeat certification.”); Morton v. Valley Farm Transp., Inc., No. C 06-

2933 SI, 2007 U.S. Dist. LEXIS 31755, *16 (N.D. Cal. Apr. 13, 2007) (certification granted for overtime, meal and rest claims despite need for individualized damage inquiries); NEWBERG ON CLASS ACTIONS § 4:26, p. 220 (4th ed. 2003) (“In most cases, the amount of damages suffered is an individual matter, but the Advisory Committee Notes state that such needed individual proof of damages will not preclude a finding of predominance.”).

(Pt 2 Next)
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Thu Jul 12, 2012 6:06 pm

Pt 2:

http://www.impactlitigation.com/wp-cont ... ruling.pdf

Case No. LA CV10-08486 JAK (FFMx) Date April 18, 2012
Title: Jack Jimenez v. Allstate Insurance Company, et al.
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c) Breaks and Rest Periods
Under California Labor Code § 226.7, if an employer fails to provide a compliant meal or rest period, the employer is required to pay an additional hour of pay to the employee at that employee’s regular rate of pay for each day for which a required meal or rest period was not provided. Although Plaintiff has met his burden of affirmatively demonstrating commonality for his proposed unpaid overtime class, he has not done so with respect to the uncompensated meal and rest period claims.
Thus, Plaintiff has not identified any common policy or practice that interfered with adjusters’ ability to take breaks other than his generic allegations that adjusters were overworked and did not have time for such breaks. These allegations are not sufficient to demonstrate affirmatively that common questions exist or will predominate. Instead, the success of Plaintiff’s claims will depend on individualized questions, such as whether a particular adjuster took the legally mandated breaks, and if breaks were missed, why the adjuster failed to take them. Further, Gilbert testified that Allstate does not coordinate
breaks or take measures to ensure that breaks are staggered; instead, employees in each unit coordinate among themselves. Gilbert Depo. 44:10-19, Paley Decl., Exh. G, Dkt. 83-2. Plaintiff does not appear to dispute this testimony. Thus, in the absence of a common practice or policy or some other “glue” to bind this class, commonality cannot be shown. Compare Brinker, 2012 WL 1216356, at *12-13
(finding that certification of a rest period claim was appropriate because the employer had a common policy governing the availability of rest periods).

d) Untimely Payment of Wages upon Termination and Unfair Business
Practices Plaintiff’s California Labor Code § 203 claim is derivative of his overtime and missed meal and rest period claims. Similarly, Plaintiff’s California Business and Professions Code § 17200 claim is derivative of his underlying claims. Thus, the determination whether these claims should be certified for class treatment depends on, and is governed by, the Court’s determinations with respect to each of these underlying claims.

3. Typicality
a) Legal Standard
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). “Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Hanon, 976 F.2d at 508. “[T]he typicality requirement is permissive and requires only that the representative’s claims are reasonably co-extensive with those of absent class members; they need not
be substantially identical.” Rodriguez v. Hayes, 591 F.3d 1105, 1124 (9th Cir. 2010).

a) The Parties’ Arguments
Defendant contends that Plaintiff’s claims are not typical of the claims of the class because Plaintiff asserted that he was “singled-out” and subjected to different terms and conditions of employment. Jimenez Depo. 140:8-142:4, Paley Decl., Exh. L, Dkt. 83-2. Plaintiff also stated that he had more work than other adjusters because he was the only Represented MIST adjuster. Among other things, he claims that he had a higher claims volume. Id. at 158:24-160:11; Jimenez Workers’ Comp. Depo. 31:4-32:25, Paley Decl., Exh. M, Dkt. 83-2. Plaintiff further testified that he had difficulty learning to use NextGen because of his age, and that he felt that his FPL, Cohn, was holding him to a higher
standard than Cohn applied to other adjusters. Jimenez Workers Comp. Depo. 49:23-51:21, 140:25-141:25, Paley Decl., Exh. M, Dkt. 83-2. Thus, Defendant contends that this testimony demonstrates that Plaintiff’s situation was unique, and that Plaintiff worked off the clock and missed breaks to appear more efficient in light of these personal factors, which are inapplicable to other potential class members.
Plaintiff responds that Rule 23(a)(3) requires only that the plaintiff’s claims be “reasonably related” to those of absent class members, citing Rodriguez, 591 F.3d at 1124. Plaintiff emphasizes that he and the putative class members all seek to advance claims for unpaid overtime and missed meal and rest periods. Further, Plaintiff, like most putative class members, was a claims adjuster during the class period when, in 2005, his job was reclassified from exempt to non-exempt. Any specific details are irrelevant because typicality refers to the nature of the claims, not the specific facts from
which they arose.

b) Plaintiff’s Claims Are Sufficiently Typical
Plaintiff has adequately demonstrated that his claims are typical of those of the putative class.
Plaintiff is correct that “[t]ypicality refers to the nature of the claim or defense of the class
representative, and not to the specific facts from which it arose or the relief sought.” Hanon, 976 F.2d at 508. Thus, here, the nature of Plaintiff’s claims and those of the class are sufficiently related. The fact that Plaintiff may have been in a slightly different situation in light of his long career at Allstate and the type of insurance claims he adjusted does not make his claims atypical. Accordingly, Plaintiff has met his burden of demonstrating that his claims are typical of the claims of the putative class.

4. Adequacy of Representation
The requirement of adequacy contained in Rule 23(a)(4) ensures that “the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). The adequacy requirement is needed to protect the due process rights of all of the class members; in a class proceeding, all class members will be bound by the final judgment. See Richards v. Jefferson County, 517 U.S. 793 (1996). The determination of adequacy hinges on whether the named plaintiffs and their counsel have any conflicts of interest with other class members and whether they will
prosecute the action vigorously. Hanlon, 150 F.3d at 1020.
Plaintiff asserts that there are no unique circumstances involving his employment as an Allstate claims adjuster that would unduly limit his ability to represent the proposed class fairly and adequately.
Defendant does not dispute this assertion, nor does it identify any potential conflicts between Plaintiff and proposed class members. Thus, the Court finds that Plaintiff is an adequate representative of the proposed class. Plaintiff’s counsel at the R. Rex Parris Law Firm also contend that they are adequate because of their experience litigating wage-and-hour class actions. See Parris Decl., Dkt. 67-1.
Defendant again does not oppose this contention. Thus, because the Court has no reason to question the representations of Plaintiff’s counsel or their commitment to pursue this action vigorously, and has no reason to believe that such counsel have any conflicts with putative class members, the Court finds that Plaintiff’s counsel is adequate.

D. Rule 23(b)(3) Requirements
If the Rule 23(a) prerequisites are satisfied, a court next considers whether the proposed class can be maintained under at least one of the subparts of Rule 23(b). See, e.g., Valentino, 97 F.3d at 1234. Here, Plaintiffs seek certification under Rule 23(b)(3), which has two requirements: (1) that “questions of law or fact common to class members predominate over any questions affecting only individual members,” and (2) “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P. 23(b)(3).

1. Predominance of Common Questions
The Rule 23(b)(3) predominance inquiry “tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). Determining whether common questions predominate requires the court to weigh the common questions in the case against the individualized questions, a more in-depth inquiry than the Rule 23(a)(2) question of whether common questions are at issue in the case. “It is clear that
considering whether questions of law or fact common to class members predominate begins, of course, with the elements of the underlying cause of action.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011).
The core of the predominance analysis is addressed in the foregoing discussion concerning commonality. In addition to the issues discussed above, Defendant contends that common questions do not predominate because: (1) overtime claims generally are not suitable for class treatment due to myriad inherent, individualized questions; and (2) Defendant’s affirmative defenses are such that common questions cannot predominate.
a) Inherent Common Questions: Overtime Claims Generally Defendant asserts courts repeatedly deny class certification of claims for unpaid overtime and off-the-clock work because they necessarily require individualized inquiries. Defendant contends that
claims for unpaid overtime are necessarily individualized where, as here, there is no corporate policy requiring “off-the-clock” work. Thus, because Plaintiff’s theory allegedly rests on discrete decisions by individual actors, rather than an overarching policy, Defendant contends that this precludes a finding that common issues of law or fact predominate.
In support of this argument, Defendant relies on the statements of its declarants, who testify that: (1) they were not required to complete any set amount of work in eight hours;

(2) they did not feel pressure to work unreported overtime; (3) overtime requests were routinely approved, or alternative means were suggested to complete the work; (4) even when not approved in advance, all reported overtime was paid; and (5) they were never disciplined for requesting or working overtime.16
Defendant also relies on relevant case law, including Koike v. Starbucks Corp., 378 Fed. App’x 659, 661 (9th Cir. 2010). In Koike, the Ninth Circuit held that:
[t]he district court's denial of the motion for class certification was proper. Even giving full
credence to the evidence presented by [plaintiff], this evidence tends to show only that
business pressures exist which might lead assistant managers to work off-the-clock. The
district court did not abuse its discretion in finding that individualized factual
determinations are required to determine whether class members did in fact engage in
off-the-clock work and whether [defendant] had actual or constructive knowledge of offthe- clock work performed.
16 See Goopio Decl. ¶¶ 7-9, 11; Lynch Decl. ¶¶ 8-9; Schlosser Decl. ¶¶ 4-6, 8; Buehlmaier Decl. ¶¶ 5, 6, 9;
Mueller Decl. ¶¶ 5-6; Keller Decl. ¶¶ 6-7, 10-14, 16-17; Oseguera Decl. ¶¶ 5, 7-8, 12-14; Perry Decl. ¶¶ 4-5, 9-11;
Newman Decl. ¶¶ 12-13; Lohr Decl. ¶¶ 4, 6, 8-10; Abich Decl. ¶ 9; Bedard Decl. ¶¶ 4, 6; Dkt. 84.

[Intervenor] argues that the district court abused its discretion by improperly assessing
the merits of [plaintiff’s] claims. However, a “district court may consider the merits of the
claims to the extent that it is related to the Rule 23 analysis.” Vinole v. Countrywide
Home Loans, Inc., 571 F.3d 935, 947 n. 15 (9th Cir.2009). The district court's analysis
clearly related to the issue of predominance under Rule 23(b)(3), and was not an
improper assessment of the merits. 378 Fed. App’x at 661.
The district court in Koike found that the putative class representative had hidden his off-theclock work from other employees and management, and had intentionally and consistently conducted such work in secret, despite having the ability to record his own time. See Koike v. Starbucks Corp., No. C 06-3215 VRW, 2008 WL 7796650, *2-4. (N.D. Cal. June 20, 2008). Here, although there is some evidence that a portion of class members’ off-the-clock work may have been done without disclosure to those who supervised the claims adjusters, there is also testimony that managers regularly saw
employees work in excess of eight hours in a day and 40 hours per week without taking any action. Indeed, there is evidence in this case that the managers knew whether those employees were being compensated for such overtime because all overtime requests had to be submitted through upper-level management.
Defendant is correct that overtime claims may present a number of individualized questions, including whether individual employees worked off-the-clock. See Washington v. Joe’s Crab Shack, 271 F.R.D. 629, 642 (N.D. Cal. 2010) (“Plaintiff has provided no evidence of any company-wide or class-wide policy of requiring ‘off-the-clock’ work, and the individualized assessment necessary to ascertain whether there were in fact any employees who were told to work ‘off-the-clock’ would not be
susceptible to common proof.”); Reed v. County of Orange, 266 F.R.D. 446, 453 (C.D. Cal. 2010)
(“These sorts of variations convince the Court that determining whether and when Plaintiffs worked offthe- clock with respect to pre-shift activities will be an inherently individualized inquiry.”). Nonetheless, courts have certified classes and allowed collective actions to proceed notwithstanding such circumstances. Generally, the more narrowly defined the class, and the more evidence of a controlling company-wide policy, the more likely it is that the class will be permitted to proceed. Compare Washington, 271 F.R.D. 629 (deciding that common questions did not predominate in a class
composed of different types of employees with different job functions when there was no evidence of a company-wide policy that interfered with overtime reporting); Brinker, 2012 WL 1216356, at *26 (noting that, for the employee’s off-the-clock claim, “neither a common policy nor a common method of proof is apparent” because there was not “substantial evidence of a systematic company policy to pressure or require employees to work off the clock”); and Koike, 2008 WL 7796650 (see above) with Mahoney,
2011 WL 4458513 (declining to decertify a collective action very analogous to the one here where adjusters claimed that overtime reporting procedures and corporate “frowning on” overtime caused off- the-clock work) and Ugas v. H & R Block Enters., LLC, No. CV 09-6510-CAS (SHx), 2011 WL 3439219, *9 (C.D. Cal. Aug. 4, 2011) (“[P]laintiffs have offered sufficient evidence that they may be able to show that defendants pursue an unwritten policy to improperly withhold overtime wages from class members in this district.”).
Here, Plaintiffs allege a company-wide policy of discouraging and limiting overtime. See Ross v. RBS Citizens, N.A., 667 F.3d 900, 908-10 (7th Cir. 2012) (finding that a state-wide overtime class was proper in light of the alleged common policy of denying employees earned overtime compensation by instructing them not to record such time). In Ross, the Seventh Circuit distinguished Dukes, noting that “there are significant distinctions,” and explaining that “the most important distinction is the size of the
class and the type of proof the Dukes plaintiffs were required to offer.” Id. With respect to class size, the court noted that the proposed class included only 1129 employees, almost the exact number at issue here. With respect to the type of proof, the court observed that, although individual issues would be present, the type of proof necessary in Dukes concerning how individual managers exercised their discretion was not necessary to Plaintiff’s claims; instead, only some lesser amount of discretion was at
issue, i.e., the discretion associated with the details of enacting a company-wide policy or directive. Id.
Thus, there was “glue holding together” the proposed class: “the common question of whether an unlawful overtime policy prevented employees from collecting lawfully earned overtime compensation.”
Id. at 910. Plaintiff’s claims in this action are similar to those advanced by the plaintiffs in Ross. Thus Plaintiff’s overtime claim is based on a common state-wide “policy to violate the policy.” For this reason, Plaintiff has demonstrated that there are significant common questions at issue and that they will predominate over any individualized inquiries.

b) Defendant’s Affirmative Defenses
Defendant identifies two affirmative defenses and argues that each precludes class certification:
(1) it did not have constructive or actual knowledge that Plaintiff and other class members were working off-the-clock; and (2) the amount of unpaid overtime is de minimis. With respect to Defendant’s de minimis defense, it can be addressed through representative testimony, as discussed above and noted in Mahoney, 2011 WL 4458513. With respect to whether Defendant had actual or constructive knowledge of the unpaid overtime, the standard of constructive knowledge is amenable to class
treatment. Thus, Plaintiff need not demonstrate that every manager knew every time an employee worked off-the-clock; instead, Plaintiff can demonstrate that Defendant should have known that its employees were regularly working off-the-clock as a result of its policies regarding the reporting of overtime, the recording of time worked by claims adjusters, its insistence on having its supervisory personnel monitor all requests for overtime, and the position of certain of its managerial personnel about the need to limit overtime for budgetary or other performance-related reasons. Further, as discussed above, Defendant will have an opportunity to raise these defenses with the epresentative witnesses. In sum, when compared to the manner of proof as to common questions, these defenses do not raise sufficiently individualized questions that either preclude certification or make a class process unfair.

2. Superiority of Class Action
In evaluating whether a class action is the superior mechanism for handling a case, a court must consider: (1) the interest of class members in individually controlling prosecution of separate actions; (2) the extent and nature of any pending litigation concerning the controversy; (3) the desirability of litigating the claims in the particular forum where the class action is filed; and (4) difficulties likely to be encountered in managing the class action. FED. R. CIV. P. 23(b)(3). A class action is superior “[w]here classwide litigation of common issues will reduce litigation costs and promote
greater efficiency.” Valentino, 97 F.3d at 1234.
Here, Plaintiff argues that this proposed class is manageable based largely on the testimony of his expert witnesses. Thus, each testifies that there are common issues pertaining to Defendant’s policy and practice, and that statistical sampling can be used to prove both liability and damages. Plaintiff’s experts, and the issues raised by the use of statistical sampling, are discussed above and are not persuasive to the Court for the reasons stated. Plaintiff also contends that he proposes an efficient and manageable class-wide trial plan because he proposes a single trial with a single judgment. This
proposed trial would determine both liability and the total amount of money damages owed to the putative class members. The proposed process is as follows: Krosnick will determine the number of class members necessary for a statistically valid and robust damages model, Krosnick will provide evidentiary foundation for the number of class members randomly selected, the parties will depose a random sample of class members, and a select group of these persons will be trial witnesses.
However, the viability of this approach again depends on the propriety of using statistical sampling to calculate damages.
As discussed above, the Court finds that the issues of liability are properly subject to class treatment, but has not yet determined how the damages phase of a trial might proceed. Thus, the Court has not been convinced at this time about the propriety of the use of statistical sampling to calculate damages. However, that is an issue that can be addressed in the future, and is not a sufficient basis to find a lack of superiority at the class certification stage. “The ‘risk [that individual damage calculations will be unmanageable] is better addressed down the road, if necessary’ by altering or amending the class, not by denying certification at the outset.” 2 NEWBERG ON CLASS ACTIONS § 4:26 (4th ed.) (quoting In re Bally Mfg. Sec. Corp. Litig., 141 F.R.D. 262, 268 (N.D. Ill. 1992), order clarified, 144 F.R.D. 78 (N.D. Ill. 1992), aff’d, 2 F.3d 1456 (7th Cir. 1993)). Moreover, when compared to the prospect of separately trying approximately 1200 individual cases as to both liability and damages, the class process envisioned would be superior based on the present facts and circumstances.17 The parties do not dispute that the other factors for evaluating superiority are met here: there is no indication that class
members have a strong interest in individually controlling separate actions, and the desirability of litigating in this forum is not contested. However, although Defendant does not contend that “the extent and nature of any pending litigation concerning the controversy” undermines the propriety of class certification, Defendant does contend that Plaintiff cannot represent certain classes currently involved in a pending state court action.
An earlier-filed action, Williams v. Allstate Insurance Co., Case No. BC 382577, is currently pending in the Los Angeles Superior Court. There, the plaintiff sought certification on behalf of auto field adjusters for all of the claims alleged here. After two hearings on July 20, 2010 and September 22, 2010, the Superior Court denied the plaintiff’s motion for class certification as to claims for meal and rest period violations and for waiting time penalties. With regard to the plaintiff’s off-the-clock claims, the court granted certification, but only for a limited range of violations involving certain specified tasks allegedly performed by the field adjusters prior to the start of their first assignment of the day. Paley Decl. ¶ 30, Exh. CC, Dkt. 83, 83-4. Defendant contends that the Superior Court’s denial of certification should be given collateral estoppel effect here. Thus, according to Defendant, such estoppel bars Plaintiff’s attempt to “re-certify” these claims on behalf of auto field adjusters in this action. The Superior Court certified a wage statement claim in Williams on behalf of all California employees. Notice was provided and Plaintiff Jimenez did not opt out. Thus, because he is currently a class member in
Williams, Defendant contends that Plaintiff’s attempt to bring that claim in this action is improper claimsplitting and must be denied. See, e.g., Adams v. Cal. Dep’t of Health Svcs., 487 F.3d 684, 692 (9th Cir. 2007).
Plaintiff does not dispute these assertions. Plaintiff contends, however, that this Court may craft a certification order that excludes any members of the Williams class. Thus, Plaintiff consents to the exclusion of the members of the Williams class, and suggests that the class here be defined in a manner that would avoid any overlap. For these reasons, the Court redefines Plaintiff’s proposed class to exclude all auto field adjusters, and the Court denies Plaintiff’s motion to the extent that it seeks to certify a wage statement claim.18

17 This issue will continue to be considered by the Court as this matter proceeds and more information is
developed through discovery. The Court reserves a final determination of the process through which damage
calculations might be demonstrated, including a possible future determination, based on the record that is later
developed, that the class should be decertified.
18 The Williams action remains pending in the Superior Court. Consequently, developments in that action may
provide a basis upon which this Court could determine whether to modify the class definitions here or to take
other steps appropriate to the management of this action as a proceeding that is parallel to Williams.

IV. CONCLUSION
Plaintiff has met his burden of alleging a company-wide policy or practice that results in the nonpayment of earned overtime compensation by presenting evidence that supports his contentions that there is: (1) a company-wide practice of discouraging and “managing” overtime; (2) imputed knowledge on Defendant’s part of the necessity of such overtime in light of heavy workloads, which did not change after the reclassification of claims adjusters from exempt to non-exempt; and (3) a company-wide practice of permitting only managers, not putative class members, to record employee time, which contributes to under-reporting of overtime worked. The Court certifies the proposed class, as limited above, with respect to Plaintiff’s first claim for unpaid overtime on the question of liability.
Specifically, the Court certifies the following class: “All current and former California-based ‘Claims Adjusters,’ excluding Auto Field Adjusters, who work(ed) for Allstate Insurance Company within the State of California at any time during the period from September 29, 2006 to final judgment, and who, as a result of Allstate’s compensation policies, were not paid overtime compensation for all hours worked in excess of eight hours per day or 40 hours per week.” The Court tentatively finds that it will allow the use representational testimony for the liability phase of the class trial, and will bifurcate the
damages phase.
Because the Court certifies a class for Plaintiff’s first cause of action for off-the-clock work, the Court also certifies that same class for Plaintiff’s derivative causes of action: (1) Plaintiff’s fourth cause of action for violation of California Labor Code §§ 201 and 202 (wages not timely paid upon termination); and (2) Plaintiff’s sixth cause of action for violation of California Business and Professions Code § 17200, et seq.
Plaintiff has not met his burden of demonstrating commonality with respect to the proposed meal and rest period class. Plaintiff has not alleged any overarching policy that interfered with putative class members’ ability to take the legally mandated meal and rest periods. Thus, Plaintiff’s motion is DENIED with respect to his second and third causes of action for violation of California Labor Code §§226.7 and 512(a) (unpaid meal period premiums) and violation of California Labor Code § 226.7 (unpaid rest period premiums), respectively. Consequently, Plaintiff’s motion is DENIED with respect to his derivative causes of action to the extent that they rely on these violations as the underlying offense. Plaintiff’s fifth cause of action for violation of California Labor Code § 226(a) (non-compliant wage statements) is dismissed because Plaintiff is a member of a class in the Williams case. The same claim is already being advanced in that action.

A Trial Setting Conference is set for April 30, 2012 at 1:30 p.m. Counsel shall submit a joint report no later than April 24, 2012 which shall address the parties’ collective and/or respective positions as to the timing of the final pretrial conference and trial date.

IT IS SO ORDERED.
:
Initials of Preparer ak
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Thu Jul 12, 2012 6:20 pm

http://www.law360.com/articles/332349/a ... in-ot-suit

Allstate Adjusters Win Partial Class Cert. In OT Suit
By Vin Gurrieri

Law360, New York (April 20, 2012, 6:32 PM ET) -- A California federal judge on Wednesday partially certified a class of nearly 1,400 Allstate Insurance Co. claims adjusters who say they were denied overtime, but ruled the employees' meal breaks and rest period claims were too individualized to pursue on a classwide basis.
U.S. District Judge John A. Kronstadt found that the workers could pursue class action claims that Allstate enacted an unofficial statewide policy discouraging workers from asking for overtime wages in violation of California labor law, but did not show the existence of a similar policy governing meal breaks and rest periods.

In his ruling, Judge Kronstadt found that the workers presented sufficient evidence to demonstrate common questions about whether Allstate had a widespread practice of not following its policies regarding overtime, whether the insurer knew that claims adjusters were working off the clock without compensation, and whether managers took steps to pay overtime to workers they knew were working off the clock.

The judge, however, refused to certify the workers' accusations of meal break and rest period violations, finding the claims would involve individualized questions that preclude commonality — such as whether a particular adjuster took the legally mandated breaks and, if breaks were missed, why the adjuster had failed to take them.

"[The workers have] not identified any common policy or practice that interfered with adjusters’ ability to take breaks other than his generic allegations that adjusters were overworked and did not have time for such breaks,” Judge Kronstadt said. “These allegations are not sufficient to demonstrate affirmatively that common questions exist or will predominate.“

“Thus, in the absence of a common practice or policy or some other 'glue' to bind this class, commonality cannot be shown,” the judge said.

Casualty adjuster Jack Jimenez brought the suit in 2010 on behalf of any claims adjuster working for the insurer in the state of California since Sept. 29, 2006. The complaint alleges that Allstate's managers are required to stay within an annual budget that includes overtime compensation, and that the performance evaluations and bonuses paid to managers are dependent on how closely they conform to the budget. This would mean that a manager would have a disincentive to approve and report overtime, the class claims.

The workers also argue that Allstate sees repeated requests for overtime as a performance issue to be addressed with individual workers — including “suggestions” on how a claims adjuster can be better trained on efficiency and alternative methods of getting the work done that do not require overtime.

Managers would often see workers performing off-the-clock work outside of their scheduled shifts but not inquire as to whether overtime was requested, the workers say.

Allstate disputes the claims, saying that it has no labor budgets for overtime and that managers are not held to overtime budgets and are not disciplined for exceeding them, according to court documents.

The insurer, which also says that it has an active policy of paying approved overtime and that workers were never disciplined for repeated overtime requests, argued against class certification by saying that since the employees worked in different offices and for different managers, their claims were too individualized for class litigation.

But Judge Kronstadt disagreed, ruling that if the adjusters are correct that Allstate had a common practice of not following its own policy requiring employees to be compensated for overtime and instead deterred the reporting of overtime, then the workers meet the requirements for commonality.

“Because all managers were allegedly implementing this statewide policy, their discretion was limited,” Judge Kronstadt said. “Thus, the court is not persuaded that the dispersion of employees across different offices and under the supervision of different managers is sufficient to defeat commonality.”

Calling Allstate's policy on off-the-clock work a “pervasive problem,” plaintiffs' attorney Alexander R. Wheeler said that since only managers could record overtime hours, the insurer's policy prevented overtime from being paid.

“[The judge] saw behind [Allstate's] written policies,” Wheeler said. “The facts uncovered an unofficial policy to violate the [written] policy.”

Now that the class has been certified, Wheeler said he expects the case to go before a jury within the next year.

A decade ago, Wheeler's firm R. Rex Parris Law Firm represented a different class of Allstate claims adjusters, which led to the insurer's 2005 reclassification of the adjusters from salaried employees exempt from the 40-hour workweek and resulting overtime rules, to hourly, nonexempt workers, according to Wheeler.

The reclassification, however, was in name only, as the workloads, expectations and salary structures imposed on the workers remained unchanged, the attorney said.

“Allstate created an environment that set the adjusters up to fail if they reported overtime,” Wheeler said.

Attorneys for Allstate were unavailable for comment Friday.

The claims adjusters are represented by R. Rex Parris and Alexander R. Wheeler of R. Rex Parris Law Firm.

Allstate is represented by Andrew M. Paley, Sheryl L. Skibbe and Julia Brodsky of Seyfarth Shaw LLP.

The case is Jack Jimenez v. Allstate Insurance Company et al., case number 2:10-cv-08486, in the U.S. District Court for the Central District of California.

--Editing by Jocelyn Allison and Kat Laskowski.


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http://www.shrm.org/legalissues/statean ... rmeal.aspx

Class Certification for Meal Period Claims More Difficult After Brinker

5/17/2012 By Nixon Peabody

In providing an employer-friendly standard for meal and rest periods, the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court also raised the likelihood that the plaintiffs would have a more difficult time obtaining class certification. Under Brinker, the Supreme Court held that employers need only make the opportunity to take meal periods available, not ensure that they are actually taken. Thus, individual issues would more likely predominate, precluding a class action. A new decision issued after Brinker confirms that class certification may be more difficult on meal and rest period claims. At the same time, it demonstrated how class actions remain possible on other claims that can be amenable to class treatment with a common practice, distinguishing the U.S. Supreme Court’s decision in Dukes v. Walmart.

In Jimenez v. Allstate Insurance Co., the U.S. District Court for the Central District of California considered whether to certify a proposed class of approximately 1,300 insurance claims adjusters who claimed off-the-clock work, and meal and rest period violations. The court found that the plaintiffs satisfied the prerequisites for a class action with respect to their claim for overtime and waiting time penalties claims, but not on their meal and rest period claims in light of Brinker. The analysis on both claims provides lessons to note.

With regard to the overtime claim, the plaintiffs claimed that despite the fact that Allstate reclassified its claims adjusters as non-exempt employees following an earlier class action, the company continued to implement a number of practices that undermined its stated policy to pay employees for all overtime worked. Among other things, the plaintiffs claimed that the performance evaluations and bonuses of managers are tied to how closely they conform to a set annual operations budget that includes a specific amount for overtime pay, and that requests for overtime were viewed as “performance issues” for individual workers that management must take steps to address. The plaintiffs contended that these practices and others collectively result in a de facto “policy to violate the policy,” creating common issues of fact amenable to treatment as a class action.

The court agreed, finding that there were common questions as to whether Allstate had a widespread practice of not following its own policies regarding overtime, whether Allstate should have known its claims adjusters were working off-the-clock without compensation, and whether managers who were told about off-the-clock work took any corrective steps to ensure the claims adjusters were paid.

Although the court acknowledged that Allstate’s argument that the class was overbroad because it includes all different types of claims adjusters working in different locations for different supervisors under different conditions had “some merit,” the court ultimately concluded that “the alleged practice of discouraging overtime has been applied with equal force to all claims adjusters in California ... [and that] because all managers were allegedly implementing this state-wide policy, their discretion was limited.” In finding that common questions prevailed over individualized inquiries, the court distinguished the Dukes v. Walmart case, noting both that the class size was much smaller, and that the type of proof regarding how individual managers exercised their discretion was not necessary here as it was in Dukes, precisely because of their limited discretion in allegedly implementing the statewide policy.

The court then denied class certification on the plaintiff’s meal and rest period claims. It noted that the plaintiff had not identified any common policy or practice that interfered with the employee’s ability to take any breaks, other than generalized allegations that they were overworked and did not have time to take them. Because there was no common policy or practice governing the availability of meal and rest periods, the court declined to certify the class.

In part, the Jimenez decision reassures employers that post-Brinker courts may employ a more rigorous analysis to determine whether putative class plaintiffs can demonstrate a common policy or practice when it comes to alleged meal and rest period violations. However, with respect to meal and rest period claims and other claims generally, the case also demonstrates that the likely focus going forward is whether there is a written company policy that violates applicable law, or other specific common practices that evidence a failure to follow legally compliant written policies.

Nixon Peabody has approximately 700 attorneys collaborating across major practice areas across the U.S. and in European and Asian commercial centers.

----------------------------------------------------------------------------------------------------------------------------------------------------------

http://www.impactlitigation.com/2012/05 ... ime-class/

Jimenez v. Allstate: Federal Court Interprets Brinker, Certifies Overtime Class
May 29, 2012

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.

-------------------------------------------------------------------------------------------------------------------------------

http://www.nixonpeabody.com/files/14704 ... AY2012.pdf

http://webcache.googleusercontent.com/s ... clnk&gl=us

MAY 11, 2012
After Brinker and Dukes, court serves up class certification
denial on meal and rest period claims but not on overtime

By Krista P. Bell

In providing an employer-friendly standard for meal and rest periods, the California Supreme Court’s
decision in Brinker Restaurant Corp. v. Superior Court also raised the likelihood that plaintiffs would have
a more difficult time obtaining class certification. Under Brinker, the Supreme Court held that
employers need only make the opportunity to take meal periods available, not ensure that they are
actually taken. Thus, individual issues would more likely predominate, precluding a class action. A
new decision issued after Brinker confirms that class certification may be more difficult on meal and
rest period claims. At the same time, it demonstrated how class actions remain possible on other
claims that can be amenable to class treatment with a common practice, distinguishing the U.S.
Supreme Court’s decision in Dukes v. Walmart.

In Jimenez v. Allstate Insurance Company, the U.S. District Court for the Central District of California
considered whether to certify a proposed class of approximately 1,300 insurance claims adjusters who
claimed off-the-clock work, and meal and rest period violations. The court found that the plaintiffs
satisfied the prerequisites for a class action with respect to their claim for overtime and waiting time
penalties claims, but not on their meal and rest period claims in light of Brinker. The analysis on both
claims provides lessons to note.

With regard to the overtime claim, the plaintiffs claimed that despite the fact that Allstate reclassified
its claims adjusters as non-exempt employees following an earlier class action, the company
continued to implement a number of practices that undermined its stated policy to pay employees for
all overtime worked. Among other things, the plaintiffs claimed that the performance evaluations and
bonuses of managers are tied to how closely they conform to a set annual operations budget that
includes a specific amount for overtime pay, and that requests for overtime were viewed as
“performance issues” for individual workers that management must take steps to address. The
plaintiffs contended that these practices and others collectively result in a de facto “policy to violate
the policy,” creating common issues of fact amenable to treatment as a class action.

The court agreed, finding that there were common questions as to whether Allstate had a widespread
practice of not following its own policies regarding overtime, whether Allstate should have known its
claims adjusters were working off-the-clock without compensation, and whether managers who were
told about off-the-clock work took any corrective steps to ensure the claims adjusters were paid.
Although the court acknowledged that Allstate’s argument that the class was overbroad because it
includes all different types of claims adjusters working in different locations for different supervisors
under different conditions had “some merit,” the court ultimately concluded that “the alleged
practice of discouraging overtime has been applied with equal force to all claims adjusters in
California. . .[and that] because all managers were allegedly implementing this state-wide policy, their
discretion was limited.” In finding that common questions prevailed over individualized inquiries, the
court distinguished the Dukes v. Walmart case, noting both that the class size was much smaller, and
that the type of proof regarding how individual managers exercised their discretion was not necessary
here as it was in Dukes, precisely because of their limited discretion in allegedly implementing the
state-wide policy.

The court then denied class certification on the plaintiff’s meal and rest period claims. It noted that
the plaintiff had not identified any common policy or practice that interfered with the employee’s
ability to take any breaks, other than generalized allegations that they were overworked and did not
have time to take them. Because there was no common policy or practice governing the availability
of meal and rest periods, the court declined to certify the class.

In part, the Jimenez decision reassures employers that post-Brinker courts may employ a more rigorous
analysis to determine whether putative class plaintiffs can demonstrate a common policy or practice
when it comes to alleged meal and rest period violations. However, with respect to meal and rest
period claims and other claims generally, the case also demonstrates that the likely focus going
forward is whether there is a written company policy that violates applicable law, or other specific
common practices that evidence a failure to follow legally compliant written policies.

For more information, please contact your regular Nixon Peabody attorney or:

Paul R. Lynd at 415-984-8235, or at plynd@nixonpeabody.com
Krista Bell at 415-984-8451, or at kpbell@nixonpeabody.com
Last edited by RatPak11 on Tue Mar 25, 2014 5:02 pm, edited 5 times in total.
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Thu Jul 12, 2012 7:10 pm

http://www.intered.com/storage/deptofed ... mp_DVI.pdf

Certified Class Action:

Testimony Type
Deposition
06/24/2010

Case Style
Christopher Williams, on behalf of himself and all others similarly situated, Plaintiffs,
v. Allstate Insurance Company, an Illinois Corporation; and DOES 1 to 100, Inclusive, Defendants.

Case No. BC 382577

Court:
Superior Court of the State of California for the County of Los Angeles – Central District
06/24/2010



Violation of California Labor Code § 226(a) (non-compliant wage statements)
certified class: Williams v. Allstate Ins. Co., Case No. BC 382577, which is pending in the Los Angeles Superior Court.
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Thu Jul 12, 2012 7:44 pm

http://www.outtengolden.com/firm/practi ... tions/#332

Allstate Insurance Company No-Fault Claims Adjusters Misclassification Overtime Lawsuit

Outten & Golden LLP represents two Allstate no-fault claims adjusters in a class action and collective action lawsuit against the nation’s largest publicly-held personal insurance company. The plaintiffs, who allege that Allstate violated overtime laws, seek to represent a nationwide Fair Labor Standards Act (FLSA) collective of no-fault claims adjusters and a New York State-wide class of no-fault claims adjusters who worked overtime in New York.

Allstate has over $133 billion in assets and earned more than $26 billion in 2010. It is an international company with offices in the U.S. and Canada, with more than 14,000 agents and representatives. The lawsuit alleges that Allstate improperly denies its no-fault claims adjusters overtime pay they are entitled to under State and Federal law by misclassifying them as exempt from the overtime protections of the FLSA and the New York Labor Law. Allstate no-fault claims adjusters spend well over 40 hours a week performing their primary duty - paying no-fault insurance claims by telephone. Their work is closely supervised and highly regulated by state insurance law and by Allstate’s own policies, which do not permit them to negotiate the settlement of claims or to determine fault.

In addition to their class action overtime claims, the Plaintiffs both allege that Allstate retaliated against them for questioning Allstate’s policy of misclassifying them as exempt and denying them overtime wages, and for filing this lawsuit. Both Plaintiffs worked for the company for over ten years.

The defendant is Allstate Insurance Company. The case is “Perez, et al. v. Allstate Insurance Company,” U.S. District Court, Eastern District of New York, Case No. 11 Civ. 1812.

Attorney Contacts: Justin Swartz (jms@outtengolden.com), Ossai Miazad (om@outtengolden.com), and Michael J. Scimone (mscimone@outtengolden.com), Outten & Golden LLP, New York, 212-245-1000.

-------------------------------------------------------------------------------------------------------------------------------------

http://www.law360.com/articles/239276/c ... ass-action

Claims Adjusters Hit Allstate With OT Class Action
By Martin Bricketto

Law360, New York (April 15, 2011, 5:53 PM ET) -- No-fault claims adjusters with Allstate Insurance Co. slapped their employer with a putative class action in New York on Wednesday accusing the company of failing to pay them legally owed overtime.

In a complaint in the U.S. District Court for the Eastern District of New York, plaintiffs Maria Victoria Perez and Kaela R.M. Brown contend Allstate has deprived no-fault claims adjusters of appropriate wages for working more than 40 hours per week by uniformly misclassifying them as exempt from federal and state overtime requirements. The insurer...

----------------------------------------------------------------------------------------------------------------------------------------

http://dockets.justia.com/docket/new-yo ... 12/316747/

Perez et al v. Allstate Insurance Company
Plaintiffs: Kaela R.M. Brown and Maria Victoria Perez
Defendant: Allstate Insurance Company

Case Number: 2:2011cv01812
Filed: April 13, 2011

Court: New York Eastern District Court
Office: Central Islip Office
Presiding Judge: Joseph F. Bianco
Referring Judge: A. Kathleen Tomlinson

Nature of Suit: Labor - Fair Labor Standards Act
Cause: 29:201 Fair Labor Standards Act
Jury Demanded By: Plaintiff
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Re: OVERTIME lAWSUIT

Unread postby RatPak11 » Tue Oct 16, 2012 8:10 pm

http://caselaw.findlaw.com/us-7th-circuit/1596856.html

PUFFER v. ALLSTATE INSURANCE COMPANY

Katherine PUFFER, Plaintiff, Karen Pell, et al., Intervening Plaintiffs–Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant–Appellee.

No. 11–1273.

Argued Feb. 23, 2012. -- March 27, 2012

Before FLAUM and TINDER, Circuit Judges, and SHADID, District Judge.*

Richard C. Godfrey, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellee.Linda Debra Friedman, Senior Attorney, Stowell & Friedman, Chicago, IL, for Intervening Plaintiffs–Appellants.

Katherine Puffer sued Allstate Insurance Company (“Allstate”) on behalf of herself and a putative class, alleging that Allstate carried out a nationwide pattern or practice of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). In her complaint, she alleged gender-based earning disparities rooted in differential treatment and disparate impact theories based on Allstate's salary, promotion, and training policies, which left significant discretion in the hands of individual managers. The district court denied plaintiff's motion for class certification. In response to the concerns expressed by the court and in response to the enactment of the Lilly Ledbetter Fair Pay Act of 2009, Pub L. No. 111–2 (the “Ledbetter Act”), plaintiff again moved for class certification. This time, she focused exclusively on Allstate's uniform compensation policies. The court again denied certification, citing flaws in plaintiff's evidence and the lack of common issues.

Puffer then settled her individual claims with Allstate. Karen Pell, Gail Howells, and Mary Keith, members of the putative class, intervened to appeal the denials of class certification. These intervenors now allege only a disparate impact theory, claiming that Allstate's policy of awarding merit increases based on a percentage of base pay and Allstate's policy of comparing salaries to its competitors caused gender-based disparities in earnings.

We shall not reach the merits of this claim, however. We conclude that intervenors have waived their disparate impact claim by failing to meaningfully develop it before the district court. Although plaintiff nominally mentioned a disparate impact claim in her complaint, she developed and argued only her pattern-or-practice claim—a type of intentional discrimination. We therefore affirm the district court's denial of class certification.

I. Background

A. Allstate's Corporate Structure and Policies

(click onto URL Address for full decision)
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