Walmart says security checks didn't push workers to skip breaks

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A Walmart sign is seen inside its department store in West Haven, Connecticut, U.S., February 17, 2021. REUTERS/Mike Segar

(Reuters) - A 9th U.S. Circuit Court of Appeals panel on Friday considered Walmart Stores Inc's bid to undo a $6 million jury verdict in a class action claiming that security checks at a California distribution center discouraged workers from leaving the facility during meal breaks.

Theane Evangelis of Gibson Dunn & Crutcher, who represents Walmart, told the three-judge panel during remote oral arguments that a class should never have been certified in the 2017 lawsuit because there was no proof that a significant number of workers were actually deterred from taking breaks.

"It would be improper to allow this classwide verdict to stand where we know this sweeps in uninjured members," Evangelis said.

The plaintiffs in the lawsuit say it was impractical for them to leave the Chino, California, facility where they worked during their 30-minute meal breaks, because it would take several minutes to walk to the security checkpoint and potentially wait in line.

The workers accused Arkansas-based Walmart of unlawfully discouraging them from taking full breaks through its security policy.

The California Supreme Court last year in Frlekin v. Apple Inc held that state law requires that workers be paid for time spent waiting in security checks. But that case involved workers who went through checks at the end of their shifts, rather than during unpaid meal breaks.

The case against Walmart went to trial in 2019 after U.S. District Judge Andre Birotte in Los Angeles certified the class, rejecting the company's claim that individual inquiries were required to determine whether specific workers were discouraged from leaving the warehouse to take breaks.

On Friday, Circuit Judge Marsha Berzon told Evangelis that she seemed to be conflating a claim that an employer made it difficult to take a break, such as by assigning a heavy workload, with the claim that Walmart's policies were eating up part of employees' unpaid break times.

"If the meal break requires you to go through a security check that takes more than a zero amount of time and it's under the control of the employer, why is that not the end of the story? Why do we have to worry if (workers were) annoyed by it or whatever?" Berzon asked.

Evangelis said that California law only requires employers to relieve workers of duty and provide breaks, and that Walmart did so.

Kenneth Yoon, who argued for the plaintiffs, countered that by requiring the security check, Walmart was depriving workers of the "reasonable opportunity" to take an uninterrupted 30-minute break required by California law.

The panel included Circuit Judge Jay Bybee and U.S. District Judge Kathleen Cardone of the Western District of Texas, who sat by designation.

The case is Hamilton v. Wal-Mart Stores Inc, 9th U.S. Circuit Court of Appeals, No. 19-56161.

For the plaintiffs: Kenneth Yoon of Yoon Law

For Walmart: Theane Evangelis of Gibson Dunn & Crutcher

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at