Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 151 the California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court, addressing employers' obligations to “provide” meal and rest breaks.752 Brinker was a landmark ruling in the context of meal break litigation, and was widely heralded as a key victory for employers. But Brinker also contained unfortunate language regarding class certification, as it asserted that a plaintiff’s “theory of liability” is itself a “common question eminently suited for class treatment.”753 This language suggests that class-wide liability may be established by demonstrating that employees were subject to an unlawful written policy, regardless of how that policy was actually applied to individual employees.754 Brinker rationalized this position: “It is far better from a fairness perspective to determine class certification independent of threshold questions disposing of the merits, and thus permit defendants who prevail on those merits, equally with those who lose on the merits, to obtain the preclusive benefits of such victories against an entire class and not just a named plaintiff.”755 Relying on this language, a number of courts post-Brinker have certified classes based on the existence of an unlawful policy or based on the allegations that the employer had no policy, even where the employer demonstrated that many employees were, in fact, being provided lawful meal and rest breaks. For example, in Faulkinbury v. Boyd & Associates, Inc.,756 the Court of Appeal concluded that the defendant’s liability would attach “upon a determination that [the employer’s] uniform on-duty meal break policy was unlawf ul.”757 It reached a similar conclusion concerning rest breaks, based solely on the plaintiff’s allegations that the employer did not have a written policy for rest breaks, despite the fact that there is no legal requirement that employers adopt their own written meal and rest break policies (as opposed to posting the Wage Orders that set forth meal period and rest break requirements). Citing Brinker, the Court of Appeal in Faulkinbury held that “the lawfulness of [defendant's] lack of a rest break policy and requirement that all security guard employees remain at their posts can be determined on a class-wide basis,” despite evidence provided by the defendant showing that, regardless of the policies (or lack thereof), employees were being provided proper breaks.758 752 See discussion of Brinker’s impact on meal break claims in Section VI(C). 753 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1033 (2012). 754 Id. (“An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable.”). 755 Id. at 1034. 756 Faulkinbury v. Boyd & Assocs., Inc., 216 Cal. App. 4th 220 (2013). 757 Id. at 235. See also Bradley v. Networkers Int'l, LLC, 211 Cal. App. 4th 1129, 1150 (2012) (“The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.”). 758 Id. at 237. See also Abdullah v. U.S. Sec. Associates, Inc., 731 F.3d 952, 962 (9th Cir. 2013) (following Faulkinbury and Brinker in certifying an action brought under Rule 23 on the basis of the employer’s uniform policy of requiring security guards to sign on-duty meal period agreements); Safeway, Inc. v. Superior Court, 238 Cal. App. 4th 1138 (2015). In Safeway, the plaintiffs alleged that Safeway’s policy of never paying premium wages for missed meal periods when such payments were required presented a common question capable of class-wide determination. The Court of Appeal affirmed class certification notwithstanding questions concerning whether individual class members ever accrued a right to
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