May 30, 2017

Well-Done Grilling of Expert in McDonald’s Overtime Trial

Alison Austin

On May 26, during a class action trial in Los Angeles Superior Court, claims for overtime by McDonald’s workers, the plaintiffs’ accounting expert testified that the company could owe $41 million in statutory penalties by scamming workers in California restaurants out of overtime payment. Last month, Los Angeles Superior Court Judge Ann Jones ruled that workers who were scheduled for night shifts would be assigned to the day the shift started and then those that also had a shift that day would not be paid overtime for working over 8 hours in a 24-hour period. A bench trial is underway to decide what penalties McDonald’s is responsible, before the company goes potentially to a jury trial.

On Friday, Michael Gray of Jones Day painstakingly questioned David Breshears about how he came to that conclusion, asking him about differences between his deposition testimony and earlier reports, and questioning if any court had ever actually confirmed that his method of calculating PAGA penalties was valid. Breshears initially said that a court in the California case Amaral v. Cintas had done so, but under further questioning admitted that he couldn’t say that for sure.

“I may have misspoken. I don’t know what was ultimately determined with regard to the calculation of penalties, but penalties were ultimately due under PAGA,” he said.

Gray also questioned Breshears about his qualifications, having him say he did not take any further university courses in accounting after getting his undergraduate degree from California State University, Chico, and needed multiple tries to pass the Certified Public Accountant test.

McDonald’s attorney Michael Gray argued that the workday started at 4 am as opposed to 9 pm, making the money owed down to $9 million.

While attorneys can all expect experts to make some mistakes on the stand, this cross-examination highlights the importance of trial preparation for both direct and cross-examination. Slight errors and exploitation of those errors may result in the difference of millions of dollars.

Alison Austin is with Austin Law Firm in Raleigh, North Carolina.

Alison Austin

Austin Law Firm in Raleigh, North Carolina.