Following the California Supreme Court’s Brinker ruling (April 2012 Employment Alert) that a California employer satisfies its meal/rest period obligations by “providing” rather than “ensuring” employees take rest and meal breaks, the trial court certified meal and rest break classes that focused on the language of the applicable employment policies. On remand inHohnbaum v. Brinker Restaurant Corporation, the plaintiffs asserted that Brinker’s policies on meal and rest breaks — on their face — violated California law and such claims should be certified for class treatment.

  • Meal Periods: Prior to 2002, Brinker did not maintain a policy on any breaks. Starting in 2002, each employee acknowledged that she was “entitled to a 30-minute meal period when I work a shift that is over five hours.” From May 2012, Brinker augmented that policy to show the 30-minute period was “uninterrupted” and the employee became entitled to a second, uninterrupted meal period when she worked more than ten hours in one day. Plaintiffs argued that Brinker’s failure to adopt a written policy prior to 2002 was itself unlawful. According to plaintiffs, the pre-May 2012 policy was unlawful for several reasons, including failure to inform employees of their right to take a first meal period by the end of their fifth hour of work or to take a second meal period at all. Plaintiffs further claim that the post-May 2012 policy was unlawful for failure to inform employees of their right to take a second meal period by the end of their tenth hour and only permitting such meal periods after completion of a full ten-hour shift. Relying on Brinker, and without commenting on the merits of the claims, the trial court recognized that “‘[c]laims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.’” Thus, the court found that, based on plaintiff’s theory of liability, the claims were amenable to class treatment.

  • Rest Breaks:The already-certified subclass, which Brinker sought to decertify, consisted of employees who worked in excess of three and one-half hours without receiving a paid 10-minute break in or after October 2000. On prior review before the California Supreme Court, the Court explained that where an employer adopts a uniform policy — as it concluded Brinker had conceded in this case — and that policy does not “authorize and permit the amount of rest break time called for under the wage order for its industry, … it has violated the wage order and is liable.” The Court further recognized that assessing the validity of that policy would be an issue common to all class members and “the trial court’s certification of a rest break subclass should not have been disturbed.” The trial court noted that Brinker did not show, on remand, a changed circumstance to justify decertification, and reiterated that the need for individual proof of damages did not undermine class treatment.

As anticipated in our April 2012 Employment Alert and as aptly demonstrated by this case, plaintiffs have honed in on a potentially viable avenue for certifying break-related claims — by targeting the validity of the corporate policy. Such tactics underscore the importance of careful review of meal and rest break policies for compliance with the technical requirements of the California Labor Code and the Wage Orders.