Brinker and Its Impact on California Employment Law
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On April 12, 2012, the California Supreme Court issued its much-anticipated decision in Brinker Restaurant Corporation v. Superior Court(2012) 53 Cal. 4th 1004. The Supreme Court resolved several important issues with respect to meal periods and rest breaks. Chiefly, Brinker resolved a split among California appellate courts regarding whether an employer must simply provide an uninterrupted 30-minute meal period to its employees, or whether an employer has a duty to ensure its employees take their meal periods. The court held that an employer satisfies its obligations to provide a meal period when it relieves its employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. Id. at 1034. The court made clear that an employer is not obligated to police meal periods and ensure that no work is performed by the employee during the break period.
In addition to resolving substantive wage-and-hour law issues, the court also answered some critical questions regarding the requirements for certifying a class action. Principally, Brinker addressed the extent to which questions regarding the elements of a plaintiff’s claims must be addressed at the class certification stage, as opposed to the merits stage after certification has been decided. Although the Court stated that courts need not, and should not ordinarily, reach questions pertaining to the ultimate merits of plaintiffs’ claims, the Court also made clear that courts may properly evaluate evidence or legal issues germane to the certification question that bear as well on aspects of the merits, and must do so if the considerations necessary to certification overlap the merits. The impact of Brinker has been felt in various cases, especially on the issue of class action certification. Because employers need only make the opportunity to take meal periods available and not ensure that they are actually taken, individual issues would more likely predominate, precluding a class action.
At the same time, however, Brinker demonstrates how class actions remain possible on claims that can be amenable to class treatment with a common practice. When an employee challenges an employer’s uniform policy (or lack of a stated policy), such as violating a wage order, that challenge constitutes a predominant common question, making class certification appropriate.
In Faulkinbury v. Boyd & Associates, Inc., plaintiffs sought to certify a class of current and former security guards. Faulkinbury (2013) 216 Cal.App.4th 220. Plaintiffs claimed that the employer denied them and other security guards off-duty meal breaks and rest breaks and miscalculated the overtime rate of pay. Because the employer had a uniform policy of requiring all security guards to take paid, on-duty meal breaks and to sign on-duty meal break agreements, the Court of Appeal held that this issue could be determined on a class-wide basis. As to the rest break claim, the court held that certification was warranted because plaintiffs presented evidence that the employer lacked a compliant rest break policy. As to the overtime claim, the court held that the employer uniformly applied its practice of calculating overtime pay with a formula that excluded consideration of uniform and gasoline reimbursements and annual bonus payments, therefore the company’s across-the-board application of this policy was suitable for class certification. The court concluded that Brinker teaches that the court must focus on the policy itself and address the issue whether the legality of the policy can be resolved on a class-wide basis. Accordingly, the court found that an employer’s liability arises by adopting a uniform policy or uniform lack of a stated policy that violates the wage and hour laws.
Benton v. Telecom Network Specialists, Inc. and Bradley v. Networkers International are two other California appellate court decisions that have applied Brinker and reached the same proposition that class certification is appropriate simply based on a uniform lack of a California-compliant meal and rest period policy. In Benton, the appellate court held that an employer violates the law on a class-wide basis through a failure to “authorize and permit” meal and rest periods if the employer cannot demonstrate that it promulgated an express California-compliant meal and rest break policy and took steps to ensure employees were aware of that policy. Benton (2013) 220 Cal.App.4th 701. In Bradley, the court held that a lack of compliant meal and rest period policies that are distributed to employees can provide sufficient commonality for class certification. Bradley (2012) 211 Cal.App.4th 1129. The Bradley Court explained that Brinker clarified that employers have a legal obligation to affirmatively provide breaks, and not having a policy is itself a common class-wide policy that warrants certification.
Although Brinker can be viewed as a victory for employers, in that post-Brinker courts may employ a more rigorous analysis to determine whether putative class plaintiffs can demonstrate a common policy or practice when it comes to alleged meal and rest period violations, Faulkinbury, Benton, and Bradley demonstrate that under Brinker, challenging illegal wage and hour policies on a class-wide basis is still possible. The probable focus will be whether there is a written policy that violates applicable law or whether other specific common practices evidence a failure to follow legally compliant written policies.
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