Workers Can't Catch a Break From Calif. Court

Mike McKee

The Recorder

In a major victory for the business community, a California appeal court ruled Tuesday that employers are only required to provide meal and rest breaks for their workers, not ensure they're taken.

The 53-page ruling by San Diego's 4th District Court of Appeal also said employers can't be held liable for working employees off the clock unless they knew they were doing so.

And in a third blow to employees, the court unanimously ruled that none of the above issues can be certified as class actions because they involve individual claims that must be handled separately in possibly thousands of "mini-trials."

Kimberly Kralowec, a partner with San Francisco's Schubert Jonckheer Kolbe & Kralowec who handled part of the case against the Brinker Restaurant Corp., called the ruling "a horrible decision for employees."

"It will mean that workers are going to be much less likely to get their meal breaks," she said, adding that she and co-counsel plan to seek review by the California Supreme Court.

Attorneys for Brinker couldn't comment, per their client's orders, and spokesmen for the Dallas-based company couldn't be reached late Tuesday. But Kent Sprinkle, an associate at San Francisco's Carlton DiSante & Freudenberger -- a firm that wasn't involved in the case but represents employers in labor and employment litigation -- encouraged the business community to celebrate.

"Employers," he wrote on a labor law blog, "can consider the Brinker decision to be a significant and positive victory that is plainly supported by the language and policy of the statute" at issue.

Brinker -- which operates 137 restaurants in California, including Chili's Grill & Bar, Romano's Macaroni Grill and Maggiano's Little Italy -- was sued in 2002 by the state Department of Labor Standards Enforcement. The agency claimed the company had failed to meet statutory standards for meal and rest periods and often worked employees through their breaks.

In April 2006, San Diego County Superior Court Judge Patricia Cowett certified a class action on all issues after finding that common issues predominated and that questions regarding meal and rest breaks were "pervasive."

On Tuesday, the 4th District unanimously reversed and ordered Cowett to deny certification.

"The question of whether employees were forced to forgo rest breaks or voluntarily chose not to take them," Justice Gilbert Nares wrote, "is a highly individualized inquiry that would result in thousands of mini-trials to determine as to each employee if a particular manager prohibited a full, timely break or if the employee waived it or voluntarily cut it short."

Nares said the same applied to meal breaks. As for working off the clock, he held, individual trials would be needed to decide whether an employee's time wasn't properly recorded.

Justices Judith Haller and Terry O'Rourke concurred.

Gov. Arnold Schwarzenegger issued a statement late Tuesday hailing the ruling.

"[This] decision promotes the public interest," he said, "by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

The 4th District reached the identical conclusion in the same case in an unpublished ruling released in October 2007. The state Supreme Court granted review that same month, but transferred the case back to the 4th District -- at the lower court's request -- because of a clerical error that made it difficult for the losing side to seek rehearing.

Kralowec said Tuesday's ruling runs afoul of the California Supreme Court's 2007 ruling in Murphy v. Kenneth Cole Productions Inc., 40 Cal.4th 1094, which gave overworked employees a longer statute of limitations period in which to seek compensation for missed meal and rest breaks.

She also said the 4th District's decision creates an appellate split that likely will ensure Supreme Court review. In Cicairos v. Summit Logistics Inc., 133 Cal.App.4th 949, Sacramento's 3rd District ruled in 2005 that employers have an affirmative duty to ensure that employees receive meal periods.

The 4th District dismissed Cicairos on Tuesday, saying it was a factually distinct case involving truckers.

The ruling is Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 08 C.D.O.S. 9247.