The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY December 29, 2022
2022COA149
No. 22CA0968, Hicks v Colorado Hamburger Company — Court and Court Procedure — Class Actions — Appeals of Grant or Denial of Class Certification; Labor and Industry — Colorado Overtime and Minimum Pay Standard Order
In this interlocutory appeal filed pursuant to section 13-20-
901, C.R.S. 2022, C.A.R. 3.3, and C.R.C.P. 23(f), a division of the
court of appeals considers whether the district court abused its
discretion in denying a proposed class certification for fast food
workers allegedly deprived of meal and rest breaks. Plaintiff’s
lawsuit is premised on purported violations of the Colorado
Overtime and Minimum Pay Standard Order, a Colorado
Department of Labor and Employment regulation that articulates
various protections for hourly wage earners.
We agree with the district court that Plaintiff’s claim based on
the deprivation of meal breaks cannot proceed because individual issues will predominate over common ones; however, we conclude
that because Plaintiff plans to use a viable class-wide means of
proving liability and damages for the alleged deprivation of rest
breaks, common issues will predominate over individual ones, thus
rendering class certification appropriate. COLORADO COURT OF APPEALS 2022COA149
Court of Appeals No. 22CA0968 La Plata County District Court No. 20CV30136 Honorable Todd P. Norvell, Judge
Jacob Thomas Hicks,
Plaintiff-Appellant,
v.
Colorado Hamburger Company, Inc., and JOBEC, Inc.,
Defendants-Appellees.
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE FOX Tow and Yun, JJ., concur
Announced December 29, 2022
The Law Offices of Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins, Colorado; Hood Law Office PLLC, Alexander Hood, Denver, Colorado, for Plaintiff-Appellant
Fisher & Phillips LLP, Micah D. Dawson, Jeffrey H. McClelland, Denver, Colorado, for Defendants-Appellees ¶1 This is an interlocutory appeal filed pursuant to section 13-20-
901, C.R.S. 2022; C.A.R. 3.3; and C.R.C.P. 23(f). Plaintiff, Jacob
Thomas Hicks, challenges the district court’s order denying his
motion to certify a class of fast-food workers. Hicks alleges that he
and other similarly situated individuals were deprived of statutorily
mandated rest and meal breaks and are therefore owed back pay.
¶2 Although we agree with the district court that Hicks failed to
satisfy the C.R.C.P. 23 class certification requirements for the
alleged deprivation of meal breaks, we conclude that he has
satisfied those requirements for the alleged deprivation of rest
breaks. Accordingly, we reverse the order in part and remand the
case with directions to enter an order certifying a class premised on
the denial of rest breaks.
I. Background
¶3 Defendants, Colorado Hamburger Company, Inc., and JOBEC,
Inc. (jointly, Colorado Hamburger), own and operate three
McDonald’s restaurant franchises in Durango, Cortez, and Pagosa
1 Springs, Colorado.1 Hicks was employed at the Durango location
from approximately February 2020 through June 2020.
¶4 In September 2020, Hicks filed a class action complaint
against Colorado Hamburger. Hicks’ lawsuit was premised on
Colorado Hamburger’s purported violation of a Colorado
Department of Labor and Employment (CDLE) regulation that
articulates various protections for hourly wage earners. Colo.
Overtime & Minimum Pay Standards Order No. 36, 7 Code Colo.
Regs. 1103-1 (effective Mar. 16, 2020-Dec. 31, 2020) (COMPS
Order). More precisely, Hicks claimed Colorado Hamburger violated
the COMPS Order by failing to provide (1) ten-minute compensated
rest breaks for every four hours worked, and (2) thirty-minute
uncompensated meal breaks for every five consecutive hours
worked.
¶5 As part of discovery, both sides submitted copies of Colorado
Hamburger’s employee handbook. Employees must acknowledge
their understanding of the handbook as a condition of employment.
1 Colorado Hamburger and JOBEC are owned by the same individual, Michael Bronson.
2 ¶6 Two aspects of that handbook are relevant here. First,
employees must clock in and out — at the beginning and end of
their shift, and for rest and meal breaks — using a biometric
electronic timekeeping system. Employees press their thumb onto
a pad, which automatically creates an entry for their profile.
Second, employees must abide by the break policy, which provides:
If schedules and workloads permit, our Company provides [rest and meal breaks consistent with the COMPS Order]. Employees should not ask to take a break. Managers determine when breaks may be taken based on the required workload.
(Emphases added.)
¶7 Among other things, Colorado Hamburger provided seventy
affidavits of current and former employees. In pertinent part, these
affidavits uniformly state:
I record my time through our electronic system. For each day that I work, I record my hours and my total time worked. For each day that I work, I clock in and clock out at the start and end of my shift, and I also clock in and out for lunch or for rest breaks. This creates a record of my hours and my total time worked.
(Emphasis added.)
3 ¶8 At Hicks’ request, the court ordered Colorado Hamburger to
supply unredacted timesheets for the seventy employees who
provided the affidavits. Hicks’ meta-analysis of these timesheets
showed a dramatic decrease in missed breaks after Hicks filed his
lawsuit in September 2020.2
¶9 Hicks argued that the absence of a recorded break showed
that the employer failed to authorize and permit a break. Colorado
2These tables were submitted by Hicks’ counsel with his declaration.
4 Hamburger countered that the timesheets could not support such
an inference; rather, the employees could have waived a break,
failed to record it, or did not receive one but were compensated on
the back end by the manager’s manual adjustment.
¶ 10 Although the court determined that Hicks’ proposed class
satisfied the requirements of C.R.C.P. 23(a), it further concluded
that Hicks failed to meet C.R.C.P. 23(b)(3)’s requirement that
common questions predominate over individual ones. For this
reason, the court denied class certification without conducting an
evidentiary hearing.
II. Hourly Wage Law
¶ 11 Two Colorado statutes establish the foundational wage
protections for hourly workers: the Colorado Minimum Wage Act,
§§ 8-6-101 to -120, C.R.S. 2022, and the Colorado Wage Claim Act,
§§ 8-4-101 to -125, C.R.S. 2022. The CDLE is empowered to
promulgate an annual regulation that implements these two
statutes. COMPS Order, 7 Code Colo. Regs. 1103-1. Hicks’ claim is
based on Colorado Hamburger’s purported violation of the
regulations pertaining to rest and meal breaks.
5 ¶ 12 With respect to rest breaks, the COMPS Order provides that
“[e]very employer shall authorize and permit a compensated
10-minute rest period for each 4 hours of work, or major fractions
thereof, for all employees.” Id. at Rule 5.2. It then elaborates on
the rationale behind and implication of this rule, noting that
[w]hen an employee is not authorized and permitted a required 10-minute rest period, his or her shift is effectively extended by 10 minutes without compensation. Because a rest period requires 10 minutes of pay without work being performed, work during a rest period is additional work for which additional pay is not provided. Therefore, a failure by an employer to authorize and permit a 10-minute compensated rest period is a failure to pay 10 minutes of wages at the employee’s agreed-upon or legally required (whichever is higher) rate of pay.
Id. at Rule 5.2.4.
¶ 13 As for meal breaks, the COMPS Order states that an employee
is entitled to an uncompensated, uninterrupted, and “duty-free
meal period of at least a 30-minute duration when the shift exceeds
5 consecutive hours.” Id. at Rule 5.1. But the Order also includes
a caveat:
When the nature of the business activity or other circumstances make an uninterrupted meal period impractical, the employee shall be
6 permitted to consume an on-duty meal while performing duties. Employees shall be permitted to fully consume a meal of choice on the job and be fully compensated for the on- duty meal period without any loss of time or compensation.
Id. Thus, an employer must provide their employee with either (A)
an uncompensated, uninterrupted, and duty-free thirty-minute
meal break; or (B) the opportunity to consume a meal of choice
while on the clock. Id.
¶ 14 In addition to giving employees rights to rest and meal breaks,
the COMPS Order imposes record-keeping duties on employers. As
pertinent here, employers must maintain “a true and accurate
record for each employee which contains . . . [a] daily record of all
hours worked.” Id. at Rule 7.1(C).
¶ 15 Finally, if employees receive “less than the full wages or other
compensation owed [they may] recover in a civil action the unpaid
balance of the full amount owed.” Id. at Rule 8.1(A).
III. Standard of Review and Class Action Certification Law
¶ 16 We generally review a district court’s decision to certify a class
for an abuse of discretion. Jackson v. Unocal Corp., 262 P.3d 874,
879-80 (Colo. 2011); BP Am. Prod. Co. v. Patterson, 263 P.3d 103,
7 108 (Colo. 2011). Accordingly, we will only reverse a district court’s
class certification order if it is manifestly arbitrary, unreasonable,
or unfair, or when the court applies the incorrect legal standard.
Jackson, 262 P.3d at 880-81. If, however, a certification decision
rests purely on a question of law, we review de novo. BP, 263 P.3d
at 108.
¶ 17 Class actions serve important functions in our civil justice
system, including the promotion of judicial efficiency, consistency,
and access to justice. See Jackson, 262 P.3d at 880-81. For this
reason, we liberally construe C.R.C.P. 23 to support its policy
favoring maintenance of class actions. Farmers Ins. Exch. v.
Benzing, 206 P.3d 812, 817-18 (Colo. 2009); LaBerenz v. Am. Fam.
Mut. Ins. Co., 181 P.3d 328, 333 (Colo. App. 2007).
¶ 18 A party can maintain a class action if:
(1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
C.R.C.P. 23(a).
8 ¶ 19 In addition to satisfying these requirements, the party moving
for class certification must prove, as relevant here, that “questions
of law or fact common to the members of the class predominate over
any questions affecting only individual members, and that a class
action is superior to other available methods for the fair and
efficient adjudication of the controversy.” C.R.C.P. 23(b)(3).
A. Predominance
¶ 20 Whether common questions predominate over individual ones
turns on “whether the proof at trial will be predominantly common
to the class or primarily individualized.” Garcia v. Medved
Chevrolet, Inc., 263 P.3d 92, 98 (Colo. 2011) (citation omitted). This
is “a fact-driven, pragmatic inquiry guided by the objective of
judicial efficiency and the need to provide a forum for the
vindication of dispersed losses.” Medina v. Conseco Annuity
Assurance Co., 121 P.3d 345, 348 (Colo. App. 2005). A plaintiff
demonstrates predominance when it “advances a theory by which to
prove or disprove ‘an element on a simultaneous, class-wide basis,
since such proof obviates the need to examine each class member’s
individual position.’” Benzing, 206 P.3d at 820 (citation omitted).
9 ¶ 21 While a court may need to consider the parties’ substantive
claims and defenses as part of its predominance analysis, it must
not prejudge the merits of the case or certify only those claims likely
to prevail on the merits. Jackson, 262 P.3d at 885. And the need
for individual proof of damages does not preclude a finding of
predominance. Id. at 889.
B. Class-Wide Inferences
¶ 22 A party may rely on a class-wide inference to prove a common
element of their claim. See Garcia, 263 P.3d at 99-102; Menocal v.
GEO Grp., Inc., 882 F.3d 905, 918-22 (10th Cir. 2018). Class-wide
inferences are permissible because they prevent redundant
inquiries into the individual circumstances of each class member.
BP, 263 P.3d at 111. “[A] trial court must rigorously analyze the
evidence presented to determine whether [it] supports a class-wide
inference . . . .” Garcia, 263 P.3d at 100. This rigorous analysis
requires a court to consider not only whether the circumstantial
evidence common to the class supports an inference, but also
whether any individual evidence offered by the opposing parties
refutes that inference. Id. at 102; BP, 263 P.3d at 111.
10 IV. Discussion
¶ 23 We first provide additional background on the district court’s
denial of class certification. We then address whether the court
erred and conclude that it did not abuse its discretion by denying
certification on the meal break theory but did so by denying
certification on the rest break theory. See Jackson, 262 P.3d at
880-81.
A. Additional Background
¶ 24 Hicks moved to certify the following class:
All current and former non-exempt employees who worked for defendants in Colorado from six years prior to the filing of the complaint through final judgment.
In support, Hicks proffered depositions of himself and Colorado
Hamburger’s owner, electronic survey responses from nine current
and former employees, and various redacted and unredacted
timesheets. But his foundational support lay in three pieces of
evidence: (1) Colorado Hamburger’s employee handbook; (2) the
seventy affidavits of current and former employees provided by
Colorado Hamburger; and (3) the timesheets from those seventy
affiants.
11 ¶ 25 Synthesizing this evidence, Hicks argued that because the
handbook’s policy requires employees to clock in and out for all
breaks, and because Colorado Hamburger’s own affiants uniformly
declared that they always abide by that policy, the absence of a
recorded break on a timesheet supports the inference that the
employer did not authorize and permit a break in violation of the
COMPS Order.
¶ 26 With the exception of one affidavit from a manager that
mirrored the other seventy affidavits, Colorado Hamburger opposed
certification with the same evidence proffered by Hicks. It claimed
that a missing break on a timesheet did not mean that it failed to
authorize and permit a break; rather, the timesheets could be
inaccurate because employees may have waived their break or
failed to record it. In support of the first theory, Colorado
Hamburger pointed to the uniform statement from the seventy
affiants who said that “[i]n my experience, and based on my
observations, if an employee does not take a rest break, that is
solely their own choosing.” As for the argument that employees did
not record their breaks, it leaned solely on a statement Hicks made
in his deposition:
12 Q: [A]t the Durango McDonald’s, did you ever forget to punch in and out either for the start or end of your shift or for a break?
A: There were a few times, but I always made sure that my manager . . . knew about it.
Q: Okay. So every time you forgot to punch in or out, you told your manager about that and — and then they fixed it, then; is that fair?
A: Yeah, they said that they would take care of it.
¶ 27 Consistent with C.R.C.P. 23(a), the court first concluded that
Hicks’ proposed class satisfied each of the four requirements:
numerosity, commonality, typicality, and adequacy.3 As part of its
commonality analysis, the court identified several common issues of
fact shared by potential class members:
3 Colorado Hamburger argues that the district court determined that Hicks failed to satisfy numerosity, and that his failure to raise arguments regarding numerosity in his opening brief are fatal to his appeal. We disagree. As an initial matter, the court’s ruling on numerosity is unclear: it first says that “Plaintiff has established there are numerous potential class members,” but then notes that “there is an issue” which it addresses as part of its C.R.C.P. 23(b)(3) analysis — specifically, that not all potential class members can prove damages. Regardless, the court’s subsequent C.R.C.P. 23(b)(3) analysis amounts to an implicit finding that the requirements of C.R.C.P. 23(a) were met, since the court could not perform the C.R.C.P. 23(b)(3) analysis if the C.R.C.P. 23(a) requirements were not met. Jackson v. Unocal Corp., 262 P.3d 874, 880 (Colo. 2011).
13 whether Colorado Hamburger failed to authorize and
permit rest breaks;
whether Colorado Hamburger failed to authorize and
permit meal breaks;
whether Colorado Hamburger had a policy of not
providing compensation for missed breaks; and
whether Colorado Hamburger did not fully compensate
potential class members as a result of its failure to
authorize and permit rest and meal breaks.
¶ 28 The court also identified multiple common issues of law:
whether an employee can legally “waive” a rest or meal
break;
whether a policy of compensating for missed rest breaks
is legal; and
whether a missed meal break is compensable.
¶ 29 It then performed the C.R.C.P. 23(b)(3) predominance analysis
for each theory. Addressing meal breaks first, the court reasoned
that the absence of a recorded break did not constitute proof that
Colorado Hamburger violated the COMPS Order; after all, it may
have provided the employee with the opportunity to eat an on-the-
14 clock meal — an action consistent with the regulation. Without a
common means of proving liability or damages (i.e., the timesheets),
the court would be required to conduct individualized inquiries into
the circumstances of each meal break for each employee. The
individualized questions would therefore predominate over the
common ones, rendering class certification inappropriate.
¶ 30 The court then turned to rest breaks, noting that
[t]here were statements from employees who variously advised they did and did not take rest breaks, and that they were and were not compensated for rest breaks. There is also evidence that employees who did take rest breaks did not always document that fact by using Defendant’s timekeeping system.
Significantly, the court did not reference the specific statements or
the relevant portions of the record underpinning that conclusion.
¶ 31 From this threshold conclusion, the court reasoned that a
missing rest break on a timesheet did not mean that an employee
was deprived of one; instead, the employee could have voluntarily
“waived” their break or forgotten to record it. For this reason, the
timesheets could not be used to prove liability or damages. And, in
the absence of a common method of proof, both would require
innumerable individualized inquiries that would predominate over
15 the common issues. Accordingly, the court reasoned that class
certification was likewise inappropriate on the rest break theory.
B. Analysis: Meal Breaks
¶ 32 Although we recognize that Hicks’ meal break theory of
liability implicates several common issues of law and fact, we agree
with the district court that the shared issues do not predominate
over the individual ones.
¶ 33 Our conclusion centers on the absence of a viable class-wide
theory of proving liability or damages. Benzing, 206 P.3d at 820.
As the district court recognized, a missing meal break on a
timesheet does not mean that Colorado Hamburger violated the
COMPS Order, Rule 5.1, 7 Code Colo. Regs. 1103-1. Instead, a
missing meal break could be one of two things: (1) the manager did
not provide the option to eat an on-the-clock meal (and thus
violated the regulation) or (2) the manager provided the opportunity
to eat a meal of choice on the clock and thus comported with the
regulation. See id.
¶ 34 To prove liability and damages on their meal break theory,
class plaintiffs would have to show that, for each missed meal
break, the manager did not provide that employee with the option to
16 have an on-the-clock meal. Because the timesheets are not
probative of this fact, individualized evidence would be necessary to
prove both liability and damages.
¶ 35 Such individualized inquiries would predominate over the
common issues. See Garcia, 263 P.3d at 99-102 (reversing class
certification because of need for class-wide individualized inquiries);
see also 2 William B. Rubenstein, Newberg and Rubenstein on Class
Actions § 4:50, Westlaw (6th ed. database updated Dec. 2022)
(noting that common questions do not predominate if, “as a
practical matter, the resolution of . . . [an] overarching common
issue breaks down into an unmanageable variety of individual legal
and factual issues” and collecting cases on this point) (citation
omitted). Because the individualized inquiries required to prevail
on the meal break theory predominate over the common issues it
implicates, Hicks fails to satisfy C.R.C.P. 23(b)(3).
C. Analysis: Rest Breaks
¶ 36 We reach the opposite conclusion with respect to Hicks’ rest
break claim. Our holding is based on the fact that, in contrast to
meal breaks, the timesheets provide a viable class-wide means of
17 proving liability and damages for the failure to authorize and permit
rest breaks. See Benzing, 206 P.3d at 820.
¶ 37 In reaching its conclusion that class certification was
inappropriate on Hicks’ rest break theory, the district court noted
that a class-wide inference was impermissible because a missed
rest break could mean that employees waived their break or failed
to record it. In so doing, the court misapplied the law. See
Jackson, 262 P.3d at 880. Indeed, our review of the record shows
that Colorado Hamburger offered little evidence to support these
theoretical possibilities, and, to the extent its countervailing
evidence calls into question the timesheets as class-wide proof,
such doubts can be resolved through circumstantial evidence,
thereby preserving the possibility of the class-wide inference.
¶ 38 Recall that in support of its waiver theory, Colorado
Hamburger offered affidavits from seventy employees who uniformly
stated that, “[i]n my experience, and based on my observations, if
an employee does not take a rest break, that is solely their own
choosing.” Hicks sought to rebut this blanket assertion with
circumstantial evidence, including evidence that the restaurants
were understaffed and that a rational fast-food worker would not
18 choose to work — for no additional compensation — instead of
taking a ten-minute compensated break. He also offered hard data
that, after the lawsuit was filed, the number of missed rest breaks
(of the seventy affiants) plummeted by approximately 93 percent the
following year (from 10,022 to 640). Supra Part I.
¶ 39 C.R.C.P. 23(b)(3) only requires that Hicks “advance[] a theory
by which to prove or disprove ‘an element on a simultaneous, class-
wide basis.’” Benzing, 206 P.3d at 820 (emphasis added) (citation
omitted). His theory is that liability and damages can be inferred
from the timesheets, and that Colorado Hamburger’s
counterargument that the workers voluntarily waived their break
can be disproven (or proven) to a jury vis-a-vis circumstantial
evidence. See Garcia, 263 P.3d at 100-01 (discussing this
evidentiary framework within which a defendant may defeat a class-
wide inference).
¶ 40 Contrary to the district court’s conclusion, Hicks’ theory
survives C.R.C.P. 23(b)(3). See Jackson, 262 P.3d at 880-81.
Depending on the totality of the evidence produced at trial, it is
possible that a jury could reasonably conclude that an individual
earning minimum (or near-minimum) wage would voluntarily
19 continue working instead of receiving a ten-minute compensated
break. But a jury could also reasonably conclude that managers
were unable or unwilling to authorize such breaks because of
staffing decisions. This latter explanation is particularly compelling
given the empirical evidence: after Colorado Hamburger was sued
for failing to provide rest breaks, its employees effectively ceased
“waiving” their breaks. This dramatic shift supports an inference
that the employees were probably not waiving their rest breaks to
begin with.
¶ 41 We are similarly unpersuaded by the argument that, because
employees may have forgotten to record their break, the timesheets
cannot be used to infer liability. The vast majority of the evidence
probative of this point comes from Colorado Hamburger itself —
specifically, its policy requiring employees to clock in and out for
rest breaks, combined with its seventy affidavits from employees
stating that they always clock in and out for rest breaks. Thus,
rather than rebutting Hicks’ argument that the timesheets can
support the class-wide inference, Colorado Hamburger’s evidence
bolsters that inference.
20 ¶ 42 To be sure, Hicks’ deposition statement that he sometimes
forgot to clock in and out for a break could theoretically rebut the
inference. But the significance of this statement is unclear; indeed,
Hicks noted that he always asked his manager to fix his timesheet,
which he believes the manager did. It is therefore plausible that the
manager fixed any errors in the timesheets, thus ensuring the
accuracy of the timesheets (i.e., all rest breaks were recorded). In
any event, Hicks’ ambiguous deposition statement does not show
that employees routinely forgot to record their breaks, especially in
light of Colorado Hamburger’s affidavits from seventy employees
stating that they always record their breaks. See State Farm Mut.
Auto. Ins. Co. v. Reyher, 266 P.3d 383, 387-89 (Colo. 2011)
(discussing evidence sufficient to undermine a class-wide inference).
¶ 43 Nor are we convinced by Colorado Hamburger’s contention
that, even if employees did not receive a rest break, we can presume
they were compensated for it on the back end. Aside from Hicks’
ambiguous statement in his deposition, Colorado Hamburger
provides no evidence to support this assertion. Such a bald claim
is insufficient to rebut Hicks’ substantial evidence supporting the
class-wide inference. See Garcia, 263 P.3d at 100-01.
21 ¶ 44 Three other considerations undergird our conclusion that
Hicks satisfies the requirements of C.R.C.P. 23(b)(3).
¶ 45 First, Hicks plans to use a paradigmatic type of evidence to
prove liability and damages: employee timesheets. See Rubenstein,
§ 4:50 (observing that common issues will predominate if
“individual factual determinations can be accomplished using
computer records, clerical assistance, and objective criteria — thus
rendering unnecessary an evidentiary hearing on each claim”)
(citation omitted). For example, the United States District Court for
the District of Colorado certified a substantially similar class for the
same reason. See Sobolewski v. Boselli & Sons, LLC, No. 16-cv-
01573, 2018 WL 3838140, at *3 (D. Colo. June 13, 2018)
(unpublished opinion) (rejecting employer’s argument that payroll
records could not support a class-wide inference and noting that
“[e]lectronic payroll records that are available for every member of
the proposed class is the precise type of generalized proof that
makes a class action more efficient than an individual action”).4
4To be sure, the court in Sobolewski v. Boselli & Sons, LLC, No. 16- cv-01573, 2018 WL 3838140, at *4 (D. Colo. June 13, 2018), certified a class for the alleged deprivation of meal breaks. But the
22 ¶ 46 Second, our jurisprudence favors class certification. Injuries
like those Hicks alleged would not be economically viable on an
individual basis. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
617 (1997) (explaining that class actions allow parties to aggregate
“relatively paltry potential recoveries into something worth
someone’s (usually an attorney’s) labor”) (citation omitted); see also
Scott A. Moss & Nantiya Ruan, The Second-Class Class Action: How
Courts Thwart Wage Rights by Misapplying Class Action Rules, 61
Am. U. L. Rev. 523, 560-64 (2012) (discussing the types of injuries
that class actions are uniquely able to address). Providing Hicks’
proposed class the opportunity to prove that they were deprived of
rest breaks is fundamentally consistent with the purpose of
C.R.C.P. 23. See Jackson, 262 P.3d at 880-81; Benzing, 206 P.3d
at 817-18.
¶ 47 Third, class certification is conditional. If Colorado
Hamburger submits evidence undermining the viability of the
timesheets as a class-wide means of proof, the district court retains
plaintiff’s claim there — that the employer’s policy effectively compelled employees to clock in early from their lunch break — is materially different than the claim Hicks advances here.
23 the discretion to decertify the class. See Jackson, 262 P.3d at
881-84 (examining the conditional nature of class certification).
¶ 48 In sum, we conclude that, applying governing legal principles,
Hicks satisfies the requirements of C.R.C.P. 23(b)(3) for his rest
break theory. Because the district court determined that his
proposed class satisfies the requirements of C.R.C.P. 23(a),
sufficient evidence exists to certify a class on the rest break theory.
V. Conclusion
¶ 49 The district court’s order is affirmed with respect to its
conclusion regarding meal breaks and reversed with respect to its
conclusion regarding rest breaks. Accordingly, the case is
remanded with directions to certify the proposed class on Hicks’
rest break claim, and to conduct further proceedings consistent
with this opinion.
JUDGE TOW and JUDGE YUN concur.