July 22, 2008
D049331
The Fourth Appellate District granted a petition for writ of mandate. The court held that employees’ claims that an employer denied them meal and rest breaks and forced them to work off the clock presented individual issues that precluded class treatment.
Brinker Restaurant Corporation operated a large number of restaurants in California.
Brinker had written policies in effect with respect to rest breaks and meal periods, and working off the clock. Employees were informed they were entitled to 30-minute meal period when they worked shifts longer than over five hours and that, when they worked more than 3.5 hours, they were entitled to rest breaks for each four hours worked. Employees were advised to clock in and out and not to begin working until they were clocked in.
The California Department of Labor Standards Enforcement (DLSE) conducted an investigation into allegations that Brinker failed to provide unpaid meal periods and failed to provide rest breaks. DLSE sued Brinker. Brinker settled prior to final conclusions by DLSE as to liability and damages. Brinker agreed to pay $10 million to settle the suit and agreed to a court-ordered injunction to ensure compliance with California’s meal period and rest break laws.
Adam Hohnbaum and other Brinker employees filed separate lawsuits, alleging rest break violations, meal period and “early lunching” violations, and off-the-clock/time shaving violations.
In court-ordered briefing, the appellants argued that Brinker’s conduct violated Industrial Welfare Commission (IWC) wage orders as well as state statutes.
In 2005, the trial court issued a meal period “advisory opinion” and order, requiring the company to provide meal periods before employees’ periods exceeded five hours. Brinker petitioned for a writ of mandate, challenging the order. The court of appeal denied the petition.
The plaintiffs moved for class certification on behalf of 59,000 past and present Brinker employees. Certification was sought for six subclasses, among them a “rest period subclass,” a meal period subclass,” and an “off-the-clock subclass.”
In support of their contention that common issues predominated, the plaintiffs submitted evidence that Brinker used a centralized computer system that could generate reports showing class-wide meal and rest break violations. They also submitted detailed declarations from 33 current and former hourly employees.
Some of the employees stated they were denied rest breaks but said nothing about whether they were denied meal breaks, or what time in their shift meal breaks were taken. Others stated they were not provided rest or meal breaks. Some of the declarants stated they were given meal breaks, but were required to take them within the first hour of working and were not given another meal break after working five hours. Some, but not all, stated they were required to work when they were clocked out for lunch or after their shift ended. Some stated they did not “waive” their breaks, but instead were not relieved of work duties so they could take their breaks.
The plaintiffs also submitted statistical and survey evidence that allegedly showed that even after its settlement with the DLSE, Brinker continued to prevent its employees from taking meal and rest periods. This evidence purported to show rest periods were not given, meal periods were not provided for every five hours worked, meal periods were taken for a period of less than 30 minutes, and second meal periods were not provided where employees worked more than five hours after the first meal period.
In response, Brinker argued that a rest break class should not be certified because (1) under IWC Wage Order No. 5, paid rest breaks need only be permitted, not necessarily taken; (2) Brinker permitted its employees to take rest breaks; (3) whether individual employees took the rest breaks that Brinker provided required a “hopelessly individualized” inquiry; and (4) individual issues thus predominated.
Brinker next argued that a meal period class should not be certified because (1) under sections 512 and 226.7, unpaid meal periods need only be provided, not necessarily taken; (2) plaintiffs’ “rolling, five-hour approach to meal periods,” which “would call for a second meal period for work days with fewer than 10 hours unless the first meal is taken exactly mid-shift” (original italics), was wrong because “[u]nder the plain language of [s]ection 512, an employee working more than five hours, but fewer than 10, is entitled to one 30-minute meal period at some point during the work day,” and “[s]ection 512 on its face calls for a second meal period only when more than 10 hours are worked”; (3) Brinker provided all required meal periods to its employees; (4) whether each employee was provided with meal periods as required by law “var[ied] person-by-person, shift-by-shift, and day-by-day,” and “involve[d] hundreds of individualized inquiries”; and (5) individual issues thus predominated.
Brinker also argued that plaintiffs’ off-the-clock claim should not be certified as a class action claim because (1) plaintiffs had not cited any Brinker policy to alter time records or permit off-the-clock work, and Brinker has a policy expressly prohibiting such work; (2) plaintiffs had no proof of “class-wide off-the-clock work”; (3) even if off-the-clock work occurred, Brinker could not be held liable unless it “suffered or permitted the work”; and (4) any off-the-clock work would have to be individually proven.
Brinker submitted more than 600 declarations from hourly workers and almost 30 declarations from managers. Brinker submitted declarations from managers who stated they permitted their employees to take rest and meal breaks. The managers explained in detail their compliance with rest and meal break laws. They also explained that there was no uniform practice for meal breaks because it was different for servers, host and bartenders than for dishwashers and cooks, and it differed for lunch shifts versus dinner shifts. They explained that Brinker allowed restaurant managers to handle meal and rest breaks compliance locally, without a system wide standard practice.
The trial court issued an order granting class certification. The court specifically found that common questions regarding the meal and rest period breaks were sufficiently pervasive to permit adjudication in this one class action.
Brinker petitioned for writ review.
The court of appeal granted the petition, holding that the trial court erred in failing to properly consider the elements of the plaintiffs’ claims in determining if they were susceptible to class treatment.
In reaching that conclusion, the court noted first that that the statutory provisions which regulate employee wages, hours and working conditions must be liberally construed. The court also recognized that mandatory rest and meal breaks have “have long been viewed as part of the remedial worker protection framework” designed to protect workers’ health and safety. In construing the applicable statutes and regulations, the court found that it had to look to the plain language of the laws and interpret them in a manner consistent with the Legislature’s intent.
With these principles in mind, the court held that the trial court failed to properly consider the elements of plaintiffs’ claims Specifically, the court found that while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide rest periods. They are not required to ensure that rest breaks are taken.
Further, employers need only authorize and permit rest periods every four hours or major fraction thereof. Such rest periods need not, where impracticable, be in the middle of each work period.
Also, the court found, employers are not required to provide a meal period for every five consecutive hours worked. And, although employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and are not required to ensure that they are taken.
Here, because rest and meal breaks needed only to be “made available” and not “ensured,” the court found that individual issues predominated in this case and, based upon the evidence presented to the trial court, they were not amenable to class treatment.
Finally, while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known that the employees were doing so. Here, the employees’ off-the-clock claims were also not amenable to class treatment. Individual issues predominated on the issues of whether Brinker forced employees to work off the clock, changed time records, or knew or should have known that employees were working off the clock.
Accordingly, the court directed the trial court to vacate its certification order and enter a new order denying with prejudice the certification of the plaintiffs’ rest, meal period, and off-the-clock subclasses.
