A California state judge has requested unopposed changes to ABM Security Services’ $110 million settlement to resolve claims that 15,000 guards were unlawfully required to carry radios and stay “on call” during rest breaks. Judge John Shepard Wiley Jr. said during a preliminary approval hearing that the 12-year-old case “is getting very close to final resolution.”
Lead Plaintiff Jennifer Augustus filed suit back in 2005 alleging that ABM’s policy requiring the guards to carry radios during breaks violated the state’s Labor Code because an employee who is on call is not on a break. A lower court awarded the guards $89.7 million in damages, but the Court of Appeal later reversed the decision, saying that being on call didn’t violate the requirement to have a rest break.
The guards took the case to the California Supreme Court. In December, that Court ruled for the guards, finding that the Industrial Welfare Commission’s Wage Order 4 prohibits on-duty and on-call rest periods.
The case returned to Los Angeles County Superior Court, with the parties seeking preliminary approval of ABM’s $110 million settlement, which represents the original judgment plus interest. In addition, while the previous award provided for attorneys’ fees of 30 percent of the settlement fund for work performed up through the $89.7 million judgment, the agreement before the court included an additional 5 percent for additional work performed postjudgment at the court of appeal and the Supreme Court.
Judge Wiley told the parties he was putting off the decision until April, and asked for a few changes to the settlement agreement. Specifically, the Judge awarded charges to the notice that would be provided to the class members. However, Judge Wiely wrapped the proceedings up on a positive note, thanking counsel “for everyone’s very long and sustained efforts on this case, which is getting very close to final resolution.” These are the changes requested by Judge Wiley:
- The lawyers were told to “consider removing the word ‘federal’ from the release or creating a mechanism for class members to opt in for the purpose or releasing [Fair Labor Standards Act] claims.”
- The lawyers were asked to simplify the objection procedure so objections need only be mailed to the claims administrator, “who can promptly forward the objections to counsel,” instead of requiring class members to submit their concerns to both the administer and counsel.
- The parties were to remove any requirement restricting those class members or their representatives who wish to be heard at the final approval hearing to those who submit written objections.
- The class notice should be amended to “provide that the parties will provide responses to any objections at the time the motion for final approval is filed” and sought to have the check cashing deadline extended from 120 days to 180 days.
- Counsel were asked to address the issue of whether class members should be given another opportunity to opt out.
Despite the list of requested changes, based on comments from Judge Wiley, it appears the settlement will be approved this month. The single certified class in the matter is defined as all persons employed by ABM in any security guard position from July 12, 2001, to July 1, 2011, who worked a shift exceeding four hours without being allowed to take an uninterrupted rest period.
The Plaintiffs are represented by Michael Breen Adreani, Drew E. Pomerance and Marina N. Vitek of Roxborough Pomerance Nye & Adreani LLP; Jeffrey Isaac Ehrlich of The Ehrlich Law Firm; Monica Balderrama and G. Arthur Meneses of the Initiative Legal Group LLP; Scott Edward Cole and Matthew R. Bainer of Cole & Associates; and Alvin L. Pittman. The case is Jennifer Augustus v. American Commercial Security Services et al. (number BC336416) in the Superior Court of the State of California, County of Los Angeles.