Declaration Statements and Surveys in Wage and Hour Cases: Part I

A Case Study:

In a recent wage and hour class action, the pharmacists at a major west coast
grocery store chain filed a class action lawsuit in state court that alleged that they
were denied the opportunity to take uninterrupted, duty-free meal breaks. The
pharmacists allege that they were routinely required to answer customer’s questions
and even fill prescriptions during their meal break period. In the state in which the
collective action was filed, the pharmacists were as of January 1, 2001 classified as
non-exempt employees. As non-exempt employees they are entitled to one or two
30-minute duty-free meal breaks depending on the amount of time worked. Across
the state, there are about 700 employees spread over about 325 store locations in
the potential class.

In the lawsuit both the extent and commonality of the off-the-clock wage and hour
violation allegations are at issue. Specially, the defendant’s attorneys are looking to
the use of declaration statements administered to the stores pharmacists to
determine what percentage of the time pharmacists believe their meal breaks were
interrupted by work related duties. In addition, the defense attorneys are looking to
determine how representative the named plaintiffs are of the proposed class of
pharmacists. Finally, the defense attorneys want to know to what degree the
allegations of missed meal breaks vary across the proposed class is also at issue in
this case.

While lawsuits involving missed break are more likely to occur in certain states such
as California which have more defined work and employment laws, and less in
others, the general survey and declaration statement design techniques that are used
in a missed meal break analysis are useful in other types of off-the-clock work cases.
Generally, a survey or declaration statement document that can be used to analyze
wage and hour violation allegations needs to have several main characteristics.