Another court has denied certification of a rest and meal period case under California law, this one relying at least in part on the Supreme Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, Case No. 10-277, 564 U.S.___ (Jun. 20, 2011).  While many courts are simply staying California rest/meal period cases pending the outcome, if there ever is one, in Brinker Restaurant  Corp. v. Superior Court, in this case did reach the question of class certification.

In Camuti v. Apple Inc.pdf., Case No. CGC-09-492590 (San Francisco Sup. Ct., June 21, 2011), the lead plaintiff was a "Genius" at the "Genius Bar" of an Apple retail store.  He brought a putative class action in California state court under the California equivalent to Rule 23, purporting to represent 480 Geniuses at 48 California retail Apple Stores.  The crux of his claim was that Apple subtly discouraged Geniuses from taking their rest breaks through a combination of a computerized schedule known as "Concierge" and a strong customer service commitment.  Much like the employer in Dukes; however, the formal Apple policy provided for and required the taking of breaks. While a proposed class of "geniuses" could prompt any number of puns and comments, the court's opinion is remarkably devoid of any.

Before the decision in Dukes was handed down, the plaintiff moved for certification and Apple moved for decertification of the class.  Immediately after the Supreme Court announced its decision in Dukes; however, the court found that the case was not appropriate for certification.  Much as in Dukes, the court concluded that because the company's policies complied with the law, the plaintiffs had to rely upon unwritten policies or practices that deprived Geniuses of their rest or meal periods.  Because of the problems of proving such a practice, citing Dukes, the court found that it was appropriate to review the merits of the plaintiff's contention.  It ultimately found that he could not make any class-wide showing that such a policy existed and also questioned his adequacy as a class representative given his inability to establish such a policy, his authority at times to schedule breaks for others, and his generally poor recollection of the instances in which he missed breaks.

The Bottom Line:  The Dukes decision is being applied to wage and hour litigation in California.  Courts are increasingly skeptical of class action claims that rely on "unwritten" policies that violate the law when the employer's formal policies are lawful.