Class Action on Meal and Rest Breaks in California

In Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, the trial court certified a class of about 60,000 current and former nonexempt employees of defendant corporations that owned and operated several restaurant chains. (Brinker, supra, 53 Cal.4th at pp. 1017-1018, 1019, fn. 4.) The class action complaint alleged the defendants violated state laws requiring meal and rest breaks for nonexempt hourly employees and accurate recording of employee worktime. (Id. at pp. 1018-1019.) The class definition included several subclasses, three of which were (1) a rest period subclass comprising "all 'Class Members who worked one or more work periods in excess of three and a half (3.5) hours without receiving a paid 10 minute break during which the Class Member was relieved of all duties' " during the subclass period; (2) a meal period subclass comprising "all 'Class Members who worked one or more work periods in excess of five (5) consecutive hours, without receiving a thirty (30) minute meal period during which the Class Member was relieved of all duties' " during the subclass period; and (3) an off-the-clock subclass comprising "all 'Class Members who worked "off-the-clock" or without pay' " during the subclass period. (Id. at p. 1019.) The Court of Appeal held the trial court erred in certifying each of the subclasses and granted writ relief to reverse class certification. (Brinker, supra, 53 Cal.4th at p. 1021.) The California Supreme Court granted review "to resolve uncertainties in the handling of wage and hour class certification motions." (Ibid.) In its opinion, the Supreme Court concluded the trial court properly certified a rest break subclass, remanded the question of certification of the meal break subclass for reconsideration by the trial court, and concluded the trial court erred by certifying the off-the-clock subclass. (Brinker, supra, 53 Cal.4th at p. 1017.) After reviewing general class action principles, the Supreme Court addressed the extent to which a trial court must address the elements and merits of a plaintiff's claim when deciding whether to certify a class. (Id. at p. 1023.) The Supreme Court confirmed a class certification motion should not be a vehicle for resolving the merits of a claim, but recognized too that "when evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate them." (Brinker, supra, 53 Cal.4th at pp. 1023-1024.) The court concluded: "Presented with a class certification motion, a trial court must examine the plaintiff's theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary. Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision." (Id. at p. 1025.) The Supreme Court then considered the scope of an employer's duties under relevant statutes and the Industrial Welfare Commission (IWC) wage orders to afford rest and meal periods to employees and whether, in light of those duties, the Court of Appeal erred in reversing the trial court's certification of the three subclasses. (Brinker, supra, 53 Cal.4th at pp. 1027-1028.) As to the rest break claim and subclass, the Brinker court clarified that the applicable wage order requires an employer to provide an employee with a 10-minute rest break for shifts from three and one-half hours to six hours in length, a 20-minute rest break for shifts of more than six hours up to 10 hours, and a 30-minute rest break for shifts of more than 10 hours up to 14 hours. (Brinker, supra, 53 Cal.4th at p. 1029.) The defendant employers had a written rest period policy, applicable to all employees, under which employees were provided only one 10-minute rest break for every four hours worked, when they should be provided a second break after six hours. (Id. at p. 1033.) The California Supreme Court held the trial court properly certified a rest break subclass because "classwide liability could be established through common proof if the plaintiffs were able to demonstrate that, for example, the employers under this uniform policy refused to authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight, hours." (Ibid.) The court emphasized that "claims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment." (Ibid.) Finally, as to the rest break subclass, the Supreme Court observed that class certification did not depend on resolution of "threshold legal disputes over the scope of the employer's rest break duties." (Brinker, supra, 53 Cal.4th at p. 1033.) The Supreme Court emphasized it addressed the merits of those substantive disputes only at the parties' request. (Id. at pp. 1033-1034.) In general, and absent such a request, "it is far better from a fairness perspective" to decide class certification independently from the merits. (Id. at p. 1034.) (2) As to a meal break claim and subclass, the Brinker court first considered the nature and scope of an employer's duty to provide a meal period. (Brinker, supra, 53 Cal.4th at p. 1034.) The court concluded that under the applicable statute and wage order, "an employer's obligation when providing a meal period is to relieve its employee of all duty for an uninterrupted 30-minute period." (Id. at p. 1038.) Resolving conflicting appellate decisions, the Supreme Court held: "An employer's duty with respect to meal breaks is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law. On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay ." (Id. at pp. 1040-1041.) The Supreme Court also resolved substantive issues regarding the timing of meal breaks. The court held: "An employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work." (Brinker, supra, 53 Cal.4th at p. 1049.) Returning to the issue of class certification, the Supreme Court remanded the matter to the trial court to reconsider certification of the meal break subclass in light of the Supreme Court's clarification of the law. (Brinker, supra, 53 Cal.4th at pp. 1049-1051.) The Supreme Court explained: "Our subsequent ruling on the plaintiffs' meal timing theory, solicited by the parties, has changed the legal landscape; whether the trial court may have soundly exercised its discretion before that ruling is no longer relevant. At a minimum, our ruling has rendered the class definition adopted by the trial court overinclusive: The definition on its face embraces individuals who now have no claim against the employers. In light of our substantive rulings, we consider it the prudent course to remand the question of meal subclass certification to the trial court for reconsideration in light of the clarification of the law we have provided." (Id. at pp. 1050-1051.) As to the off-the-clock claim and subclass, the plaintiffs had asserted the defendant employers required employees to perform work while clocked out during meal periods and did not afford them an uninterrupted 30 minutes. (Brinker, supra, 53 Cal.4th at p. 1051.) The Supreme Court concluded substantial evidence did not support the trial court's conclusion that common issues predominated the off-the-clock subclass. (Ibid.) For the off-the-clock claim and subclass, the plaintiffs had presented no evidence of a uniform policy allegedly in conflict with the Labor Code and relevant IWC wage order. (Brinker, supra, at p. 1051.) The only formal employer policy disavowed off-the-clock work, and the plaintiffs presented no evidence of "a systematic company policy to pressure or require employees to work off-the-clock." (Ibid.) The Supreme Court also based its decision on the plaintiff's failure to present evidence rebutting the presumption that an employee who has clocked out is performing no work. (Brinker, supra, 53 Cal.4th at p. 1051.) An employer's liability is contingent on proof the employer knew or should have known off-the-clock work was occurring, and "nothing before the trial court demonstrated how this could be shown through common proof, in the absence of evidence of a uniform policy or practice." (Id. at pp. 1051-1052.) "Instead, the trial court was presented with anecdotal evidence of a handful of individual instances in which employees worked off-the-clock, with or without knowledge or awareness by the employers' supervisors. On a record such as this, where no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by-employee fashion, demonstrating who worked off-the-clock, how long they worked, and whether the employers knew or should have known of their work." (Id. at p. 1052.) In a concurrence to her own opinion, Justice Werdegar sought to provide guidance on remand regarding the missed meal break issues. (Brinker, supra, 53 Cal.4th at p. 1052 (conc. opn. of Werdegar, J.).) She stated the court did not endorse the employers' argument that the question why a meal period was missed renders meal period claims "categorically uncertifiable." (Ibid. (conc. opn. of Werdegar, J.).) Justice Werdegar stated that if an employer's records show no meal period for a given shift, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided, shifting the burden to the employer to show the meal period was waived. (Id. at p. 1053 (conc. opn. of Werdegar, J.).)