Jacob Thomas Hicks v. Colorado Hamburger Company

     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

                               

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                                       

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., 

 (Colo. 2011); BP Am. Prod. Co. v. Patterson, 

,



                                      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, 

. If, however, a certification decision

  rests purely on a question of law, we review de novo. BP, 

.

¶ 17   Class actions serve important functions in our civil justice

  system, including the promotion of judicial efficiency, consistency,

  and access to justice. See Jackson, 

. 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, 

 (Colo. 2009); LaBerenz v. Am. Fam.

  Mut. Ins. Co., 

 (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., 

 (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., 

 (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, 

 (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, 

. And the need

  for individual proof of damages does not preclude a finding of

  predominance. 

.

                       B.   Class-Wide Inferences

¶ 22   A party may rely on a class-wide inference to prove a common

  element of their claim. See Garcia, 

; Menocal v.

  GEO Grp., Inc., 

 (10th Cir. 2018). Class-wide

  inferences are permissible because they prevent redundant

  inquiries into the individual circumstances of each class member.

  BP, 

. “[A] trial court must rigorously analyze the

  evidence presented to determine whether [it] supports a class-wide

  inference . . . .” Garcia, 

. 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. 

; BP, 

.




                                    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, 

.

                       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., 

 (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, 

.

  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 

¶ 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, 

 (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, 

.

¶ 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, 

. 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, 

 (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, 

 (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, 

.

  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, 

 (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, 

.


                                    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, 

, 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, 

, 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, 

 (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, 

, 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, 

; Benzing, 

.

¶ 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, 

 (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.




                                    24