Trial Court Properly Denied Class Certification For State Law Wage And Hour Lawsuit

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers, Public Safety
DATE: Feb 10, 2022

From approximately 2013 to 2016, Jason Cirrincione worked at American Scissor Lift, Inc (ASL) as a non-exempt, hourly employee.  ASL rents heavy machinery equipment such as scissor lifts and machine booms.  Cirrincione’s primary duties included painting and assembling rental equipment.  Cirrincione and other hourly employees were eligible for production bonuses each pay period based on the amount of equipment they prepared.

In April 2018, Cirrincione filed a class action complaint against ASL for various California wage and hour violations, including failure to pay overtime wages, failure to pay minimum wages, failure to provide meal and rest breaks, and failure to pay reimbursement expenses.  Cirrincione purported to represent as many as 50 former and current employees of ASL.   The claims challenged ASL’s policy and/or practice of rounding work time, which allegedly resulted in the systematic underpayment of wages.

In October 2019, Cirrincione moved for class certification, seeking to certify multiple subclasses, including a rounding subclass, two meal break subclasses, two rest break subclasses, a no reimbursement subclass, and a final wage subclass.  After a hearing, the trial court issued an order denying the class certification motion because Cirrincione failed to establish the requirements necessary to proceed on a class basis.

With respect to the proposed rounding subclass, the trial court rejected Cirrincione’s contention that an employer’s practice of rounding work time without a uniform, written rounding policy violates California law.   It also noted that ASL’s rounding practice varied from location to location and from supervisor to supervisor.  For similar reasons, the trial court determined the claims of the other subclasses were not appropriate for class treatment. Cirrincione appealed.

On appeal, Cirrincione contended that the trial court was wrong to conclude that his rounding claim was not suitable for class treatment because ASL had a practice of rounding employee time but no written rounding policy.  The California Court of Appeal rejected Cirrincione’s arguments and stated that the trial court properly discussed the law governing the rounding claim.  The court found the trial court properly rejected Cirrincione’s unsupported assertion that an employer’s practice of rounding employees’ work time without a written policy violates California law.  An employer in California is entitled to round its employees’ work time if the rounding is done in a “fair and neutral” manner that does not result, over a period in time, in the failure to properly compensate employees for all the time they have actually worked.  Under this standard, an employer’s rounding policy or practice is “fair and neutral” if on average, it neither over-or under-pays.  Thus, the court concluded that the trial court did not err in refusing to certify the proposed rounding subclass.  The court also affirmed the trial court’s decision as to the other subclasses.

Cirrincione v. Am. Scissor Lift, Inc., 73 Cal.App.5th 619 (2022).


This case involves California wage and hour claims that generally do not apply to public agencies.   However, the Fair Labor Standards Act (FLSA) regulations (which do apply to public agencies) include similar language on the rounding issues.  FLSA regulations allow employers to round time, as long as this rounding does not result in a failure to count as hours worked all the time employees have actually worked over a period of time.

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