Brink?s pays its armored vehicle drivers for meal and rest periods. ?But company policy requires the employees to continuously observe their surroundings for security purposes during such breaks. ?They are prohibited from engaging in any personal activities. ?Employees filed a class action for denial of meal and rest breaks, which was certified under 23(b)(3)over the employer?s objections. ?After a bench trial, the court ruled for the plaintiffs reasoning that Brink?s required them to engage in active work duties at all times.

The employer appealed both the class certification and merits decisions. ?Division One affirmed. ?The court disagreed with Brinks that a class could not be certified because the decision when to take breaks varied from employee to employee. ?CR 23 does not require that the shared questions of fact or law be identical as to each class member.

The court also disagreed with Brink?s that the trial judge had confused ?on-duty? with ?on call.? ?The court refused to consider the argument that ?vigilance? is not work, as the employer did not make that argument below.??? ?The court nevertheless distinguished between vigilance requiring active observation and mental exertion, which qualifies as work, and passive vigilance, which does not.

The panel rejected the employer?s argument that Washington law requires only that an employer not stand in the way off an employee?s efforts to take ?meal ?breaks.???? The ?court ?held ?that ?an employer has a mandatory obligation to provide those breaks. ?If an employee is on duty the paid meal or rest break may be interrupted, but the employee is entitled to a full 30 minutes of paid meal time and a full 10 minute rest break without performing work duties for the employer.?? The court held that the logic of Wingert v. Yellow Freight Sys, Inc. applied equally to meal breaks.

The court also rejected the argument that paying an employee for the time spent on duty during the? breaks ?means ?that ?employees ?can ?work during the breaks. ?Instead the court held that if the employee is called on to engage in work activity during the break, the time does not count towards the required break time.

The appellate court affirmed the trial court?s finding that brief stops to run to the restroom or grab food or drink to consume in the truck did not ?rise ?to ?the ?level ?of? an ?intermittent ?break. They didn?t provide a true break from work activity and an opportunity for relaxation.?? The panel? ?agreed? ?with? ?the?? trial? ?court? ?that? ?the Company had failed to show a waiver of the right to meal breaks through unequivocal conduct

The court upheld the plaintiffs? damages calculation method which class-wide averages to supply missing data for particular days.? This was a reasonable basis for estimating the loss.

Pellino v. Brink?s, Inc., 164 Wn. App. 668, — P.3d — (Nov. 7, 2011) (Div. 1) (Schindler, Lau, Cox).