Outdated and non-compliant meal or rest break policies can, and often do, lead to costly class action lawsuits for employers. But having lawful written policies is only half the battle. A recent California court of appeal decision reiterated that “the mere existence of a lawful break policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks.” Alberts v. Aurora Behavioral Health Care, — Cal.Rptr.3d —-, 2015 WL 6121981 (Cal. Ct. App. Oct. 16, 2015).

In Alberts, nurses at a hospital brought a class action alleging that the Hospital denied them meal and rest periods and forced them to work off the clock. The Hospital had a written policy that provided for a meal break “approximately halfway between the beginning and ending of the employee’s shift,” and allowed for two 10-minute rest periods “approximately halfway between starting time and an employee’s meal period, and between the meal period and an employee finishing work for the day.” While the parties disputed the lawfulness of these policies, Plaintiffs moved to certify the class on the theory that the Hospital systematically understaffed its nursing positions, making it impossible for all employees to take all of their mandated meal and rest breaks. Plaintiffs also alleged that the Hospital had a business practice of regularly directing nurses to work off the clock in order to maintain appropriate nurse staffing ratios even though the Hospital’s written policy expressly prohibited off-the-clock work.

The trial court denied class certification in part because of the “facial legality” of the Hospital’s written policies. But the court of appeal reversed, holding that the mere existence of a lawful policy will not defeat class certification in the face of actual contravening policies and practices that, as a practical matter, undermine the written policy and do not permit breaks. The Court found that the question of whether the Hospital’s “system governing rest and meal breaks—which applies to all putative class member—does not comply with California law” is a common question amenable to class certification.

Alberts also has good news for employers. The court held that even if plaintiffs had articulated a common issue for purposes of class certification, it was unclear whether the case would be manageable as a class action, and the court remanded the case for further consideration of that issue. In other words, even where the Plaintiffs’ theory of recovery turns on the lawful application of a written policy and thus, may present a common question, this does not necessarily mean that common issues will predominate such that the case can be manageably tried as a class action. The concurring opinion stressed that the case is unlikely to be able to proceed as a class action because, “[i]n a case like this one, where plaintiffs’ primary allegations are that the Hospital had de facto illegal policies, as opposed to policies illegal on their face, individual evidence is likely to be central both to plaintiffs’ case and to the Hospital’s defense.”

Accordingly, employers would be wise not to assume that written policies will insulate them from class actions. They should, instead, assess whether their actual business practices are in line with their written policies.