Argued and submitted on February 05, 2013.
Multnomah County Circuit Court 071011657 Stephen K. Bushong, Judge.
Douglas E. Smith, Washington, argued the cause for appellant. On the briefs were Brad C. Stanford, Kimberly Hanks McGair, and Farleigh Wada Witt, and David R. Fine, Amy L. Groff, and K&L Gates LLP, Pennsylvania.
Kathryn H. Clarke argued the cause for respondents. With her on the brief were Arthur Schmidt, Julie Samples, and Oregon Law Center, and James E. McCandlish, Mark E. Griffin, and Griffin & McCandlish, and Phil Goldsmith and Law Offices of Phil Goldsmith.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
In this class action wage and hour case, defendant Del Monte Fresh Produce, N.A., Inc., appeals after a special jury verdict for plaintiffs and the trial court's subsequent awards of statutory penalty wages and attorney fees for plaintiffs. On appeal, defendant raises four assignments of error. We reject defendant's third and fourth assignments of error without discussion. In its first assignment of error, defendant argues that the trial court erred by refusing to decertify the class at trial. In its second assignment of error, defendant argues that, although the jury found that it was a joint "employer" of the class members under the definition of that term in ORS 653.010(3), a narrower definition of "employer" applies to the assessment of penalty wages under ORS 652.150; thus, defendant contends, the trial court erred in awarding class members penalty wages on summary judgment based on the jury finding. Because the trial court did not abuse its discretion in denying defendant's motion to decertify the class and because the trial court correctly found that defendant was an employer liable for penalty wages--consonant with the special verdict and after defendant waived a jury determination on that issue--we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The relevant facts are primarily procedural. Plaintiffs are class representatives for a class consisting of minimum wage production workers who worked at defendant's fresh-cut produce plant in Portland, Oregon, between the dates of January 1, 2006, and June 12, 2007. During the class time period, Staffco Management Group, Inc., (Staffco) provided the production workers to defendant to work at the plant. Plaintiffs brought the class action against defendant and Staffco for, among other claims, violations of the Oregon wage and hour laws. Plaintiffs alleged that the production workers donned necessary protective clothing before clocking into work, doffed the clothing after clocking out of work, and donned and doffed the clothing during the required 30 minute meal breaks, which resulted in uncompensated work time. Because Staffco was the direct employer of the production workers, one of the issues in plaintiffs' case against defendant was whether defendant was a joint employer of the workers with Staffco under the applicable statutes.
The trial court conditionally certified the class, analyzing each of the class certification requirements under ORCP 32 A and B. In the case management order, the trial court removed the conditions on certification and identified the following class issues:
"(1) whether defendants jointly employed the class members; (2) whether defendants required class members as a matter of policy or regular practice to 'don and doff' required work clothes on their own time, resulting in violations of Oregon law; (3) whether defendants required class members as a matter of policy or regular practice to work without pay in lieu of taking lunch breaks, resulting in violations of Oregon law; (4) whether defendants charged class members as a matter of policy or regular practice for required protective gear (cloth gloves and plastic aprons), resulting in violations of Oregon law; (5) whether [defendant] breached the terms of the 2006 Settlement Agreement as to the class; and (6) whether defendants failed to pay class members all wages that were due when their employment ended as a matter of policy or regular practice, resulting in liability for statutory penalties under ORS 652.150."
(Footnote omitted.) The case management order further provided that the case would proceed as follows: (1) discovery on class issues, (2) dispositive motions on class issues, (3) jury trial on class issues, (4) submission of claims by class members, (5) contests to individual claims by defendants, (6) discovery on individual contested claims, (7) dispositive motions on individual contested claims, and (8) trials on remaining individual contested claims.
After the completion of class discovery, the parties brought cross-motions for summary judgment on the issue of whether defendant was an employer of the class members. In its motion, defendant raised the argument that there were two different definitions of "employer" that applied to plaintiffs' claims--one that arose under ORS chapter 653 of the wage and hour laws and would determine defendant's liability as a joint employer of the class members, and one that arose under ORS 652.150 that would determine whether defendant could be required to pay penalty wages as an employer of the class members. The trial court denied both parties' motions, determining that issues of fact existed as to whether defendant was an employer of the class members under either definition advanced by defendant.
During trial, at the close of plaintiffs' evidence and then at the close of all evidence, defendant moved to decertify the class, arguing that the class representatives lacked typicality and that the class issues did not predominate over individual issues. Specifically, defendant argued that, based on some of the witnesses' testimony that they observed other workers donning and doffing on the clock, that they did not don and doff off the clock, and that there was no policy requiring workers to don and doff off the clock, it had a right to make individual inquiries as to why each class member worked off the clock and did not submit a time adjustment form. Defendant reasoned that, because it was entitled to individualized inquiries, class issues did not predominate.
The trial court denied both of defendant's motions to decertify the class. After defendant's renewed motion at the close of evidence, the trial court ruled as follows:
"At this juncture, [defendant] has been very consistent in its insistence that this case is not appropriate for class action treatment. I initially conditionally approved a class action treatment and then removed the condition many months ago.
"Nothing in the evidence as it was presented to me in this case has convinced me that that decision was ill-advised. I think there is evidence from which a reasonable juror could conclude that class members were treated sufficiently similarly to support class action treatment in this case.
"Now, whether the jury makes that conclusion or not would be a matter for the jury to decide. But, at this juncture, I'm going to deny the motion for decertification of the class."
The trial court submitted the case to the jury both on the class issues and liability. On liability, the court gave the jury instructions on the factors to consider in determining whether ...