On April 12, 2012, the California Supreme Court in Brinker Restaurant Corp. v. Superior Court issued a critical decision regarding break and off-the-clock claims and the standards governing an employer’s obligation to provide breaks under California law. Since the Supreme Court issued its opinion, employers have been eagerly awaiting its application by the lower courts in determining the suitability of class treatment for break and off-the-clock claims. Two recent Court of Appeal decisions, Hernandez v. Chipotle Mexican Grill, Inc. and Lamps Plus Overtime Cases, found class certification inappropriate for meal and rest break claims. These decisions reassure employers 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. The cases also demonstrate that the likely focus going forward is whether there is a written company policy that violates applicable law, or other specific common practices that evidence a failure to follow legally compliant written policies.
In April of 2012, the California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), clarifying a number of important issues bearing on meal and rest periods under California wage and hour law. The Court ruled that employers must relieve non-exempt employees of all duties during meal periods, but they are not required to “police” their employees to ensure no work is done. The Court also ruled that employees who work more than 10 hours in a shift are entitled to one meal period, even if the timing of the meal period causes the employee to work more than five hours between the meal and the end of the shift. Further, the Court clarified rules on rest periods and provided guidance to trial courts regarding their duty to make legal or factual determinations at the class certification stage. Five months postBrinker, California courts have had the opportunity to interpret and apply the seminal case. Two recent decisions provide guidance on how the lower courts are applying Brinker’s holding regarding class certification of meal and rest break claims.
Hernandez v. Chipotle Mexican Grill, Inc.
In Hernandez v. Chipotle, a putative class of non-exempt Chipotle employees sought certification of a wage and hour class action alleging violation of California meal and rest period laws. Before Brinker was decided, the presiding trial court denied class certification, in large part because it found that individual issues predominated over common ones. In August of 2012, the Court of Appeal reviewed the trial court’s holding in light of the Brinker decision and affirmed the denial of class certification. In so doing, the Chipotle court delivered an instructive analysis centering on the predominance standard which shed light on the implications of Brinker for future California wage and hour class actions.
The Chipotle court found substantial evidence supporting the trial court’s ruling that individual issues predominated. The court reasoned that the evidence showed significant variation in putative class members’ experiences with regard to meal and rest periods. Some employees reported they always missed meal breaks, others stated their breaks were delayed, still others said they received meal breaks, but not rest breaks, and so on. Accordingly, the court held the evidence showed Chipotle did not have a universal practice with regard to meal and rest periods, and in fact, the only universal policy in place provided employees with meal and rest periods as required by law. The court noted that “in order to prove Chipotle violated break laws, [the plaintiff] would have to present an analysis restaurant-by-restaurant, and perhaps supervisor-by-supervisor” because even if Chipotle supervisors directed when employees could take breaks, there was substantial evidence that supervisors did not uniformly handle breaks. This observation by the court suggests that wage and hour class actions in the future may be fought at a regional level, as opposed to a nationwide level.
Also instrumental to its finding that individual issues predominated was the court’s holding that time records showing that employees did not clock in and out for meal and rest periods did not warrant class treatment. The court reasoned that a trier of fact would still need to establish, on an individual basis, whether “employees actually missed breaks, or simply forgot to record them, as well as the reason why employees might have missed breaks or went back to work before completing them.” These individualized inquiries were particularly important in this case, where Chipotle actually paid its employees for all meal and rest periods, which the court found to have created a lack of incentive by employees and managers alike to keep accurate records of such breaks.
The court also rejected the plaintiff’s attempt to use sampling of testimony and expert analysis to show that class certification was appropriate, noting that such evidence failed to take into account that employers must only “provide” breaks, not “ensure” that they are taken. The court held that plaintiff’s attempt fell short of demonstrating a pattern or practice of missed breaks and failed to account for individual variation in the sample of putative class members.
Lamps Plus Overtime Cases
In Lamps Plus, the Court of Appeal also affirmed the trial court’s finding that class certification was improper because individual issues predominated. As in Chipotle, the court reasoned that the plaintiffs failed to demonstrate a common practice or policy that would warrant class treatment because (1) the evidence showed significant variation among the putative class members; (2) individualized inquiries would be necessary to determine why employees missed breaks; and (3) the evidence provided by the plaintiffs, including testimony, time records, and expert analysis, could not adequately address these issues on a classwide basis.
The Lamps Plus court rejected the plaintiffs’ theory that “chronic understaffing” lead to classwide violations of meal and rest period requirements, noting that the evidence simply suggested that employees had difficulty taking breaks during certain busy times; the evidence did not indicate that employees were unable to take breaks at less busy times. This finding demonstrates that even evidence of a uniform practice (chronic understaffing) that could potentially explain why some employees missed meal and rest periods is not necessarily sufficient to overcome the need for analysis on an individual level.
Practical Implications for Employers
The clarified standards set forth in Brinker have significantly raised the bar on class certification based on meal and rest break violations. Courts are focusing on whether there is sufficient evidence of a truly uniform policy or practice, though it is not quite clear at this time what such a showing would look like, especially in the context of nationwide class actions. Recent cases, such as Chipotle and Lamps Plus, indicate that proof of liability in wage and hour class actions will necessitate individualized inquiries to a much greater extent moving forward, and that such necessity provides employers with a strong defense against class certification. While these decisions provide employers more flexibility in the management of employee meal and rest breaks, employers must still ensure that they do not have policies or practices that impede their employees’ ability to take meal periods and must make a good faith effort to authorize and permit rest breaks in the middle of each work period.