Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 47 to ensure that employees take full, timely thirty-minute breaks. Employers would need to upgrade timekeeping systems and even discipline employees for not taking compliant meal periods. Without oversight, opportunistic employees might take short or late meal periods and later claim entitlement to meal period premiums. Employers breathed a sigh of relief when, in 2008, the Court of Appeal issued its decision in Brinker Restaurant Corporation v. Superior Court,240 which concerned a putative class of hourly restaurant employees who contended they had not been provided with meal and rest periods.241 The plaintiffs claimed that employers were required to ensure that employees took their meal breaks, to provide meal breaks as close as possible to the middle of each shift, and to provide a meal break for each five-hour block of time on a “rolling” basis. The trial court had certified a class on these claims, without first deciding any relevant legal issue, such as whether employers were required to mandate meal breaks. Instead, the trial court stated that this was a common legal issue to be decided on a classwide basis following certification. The Court of Appeal reversed the trial court, holding that it was an abuse of discretion for the trial court to fail to determine the legal elements of the plaintiffs’ claims in ruling on class certification. The Court of Appeal held that employers need only make meal periods available to employees, which rendered the plaintiffs’ claims unsuitable for class adjudication because it would be necessary to determine on a case-bycase basis whether each employee was actually denied meal breaks (company policy clearly provided for meal periods).242 This victory was short-lived, as the California Supreme Court granted review of Brinker in 2008. For nearly four years thereafter, the law was unsettled as the Supreme Court wrestled with this issue. Meanwhile, around this time at least six federal decisions were issued that also held that an employer’s duty to “provide” a meal period is to make it available and that meal period claims based on a mere failure to ensure employees took meal periods are unsuitable for class certification.243 240 Brinker Rest. Corp. v. Superior Ct., 80 Cal. Rptr. 3d 781, 786 (Ct. App.), review granted and opinion superseded sub nom. Brinker Rest. Corp. v. Superior Ct., 196 P.3d 216 (Cal. 2008), aff'd in part, rev'd in part, 53 Cal. 4th 1004, 273 P.3d 513 (2012). 241 The complaint also alleged a claim for working “off the clock.” 242 The Court of Appeal also determined that: (1) employers are not required to provide a meal period during every block of five consecutive hours worked, and therefore the defendant’s policy of sometimes providing meal periods early in employees’ shifts was not improper; (2) employers need only provide rest breaks, not mandate them; (3) employers are only required to provide one rest period per four hours worked or “major fraction thereof,” with the “major fraction thereof” meaning between three and one-half to four hours; (4) rest breaks are not required to be in the middle of each four-hour work period where that would be impracticable; and (5) employers may be liable for employees working “off the clock” only where the employer knew or should have known about such work being performed. Brinker, 80 Cal. Rptr. 3d at 786. 243 See White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007) (cited in Brinker; first published decision to hold “provide” means “make available.”); Brown v. Fed. Express Corp., 249 F.R.D. 580, 585-86 (C.D. Cal. 2008) (“Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who ... do not appear to remain in contact with the employer during the day.”); Kenny v. Supercuts, Inc., 252 F.R.D. 641, 645-46 (N.D. Cal. Jun. 2, 2008) (“[The Labor Code] does not require an employer to ensure that an employee take a meal break.”); Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529, 533 (S.D. Cal. 2008) (“The Court agrees with the compelling reasons advanced by the White, Brown, and Kenny decisions for interpreting ‘provide’ to mean ‘make available’ rather than ‘ensure taken.’”); Kohler v. Hyatt Corp., No. EDCV 07-782-VAP (CWx), 2008 U.S. Dist. LEXIS 63392, at *18 (C.D. Cal. Jul 23, 2008) (“An employee must show that he was forced to forego his meal breaks, as opposed to merely showing that he did not take them regardless of the reason.”); Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, at *6-7 (C.D. Cal., Nov. 28, 2011) (noting that employers only need to make meal periods available to employees and that posting a copy of the Wage Order was sufficient to advise employees of that right).
RkJQdWJsaXNoZXIy OTkwMTQ4