A California Court of Appeal issued a Christmas Eve ruling setting out the significance of a written employment policy for class certification purposes. In Cacho v. Eurostar, Inc., the court held that a correct, yet incomplete, meal break policy does not support class certification, absent other evidence suggesting that common, rather than individual, issues predominate. The court went one step further, also holding that an incorrect written policy, without evidence of implementation, does not support class certification.

In this case, the employer’s written meal break policy provided that “Employees working over five (5) hours in any workday qualify for at least one-half (1/2) hour, unpaid, off-duty meal break during that workday.” The policy did not, however, provide that an employee’s meal break should commence within the first five hours of work and does not authorize a second meal break for shifts exceeding 10 hours—as the law requires. The Court of Appeal explained that this lack of completeness did not support class certification because the written policy was not contrary to law and there was no other evidence that the employer had a common policy or practice not to provide timely first meal breaks or not to provide a second meal break for shifts exceeding 10 hours.

The employer had another written policy at issue, and while it was incorrect, the court concluded class certification was not proper due to lack of corroborating evidence. The employer’s rest break policy incorrectly authorized a first rest break after four hours of work rather than three and a half hours. The plaintiffs presented no evidence, however, that the employer had a practice to deny rest breaks for shifts between three-and-a-half and four hours. Further, the employer presented evidence that the practice was to provide rest breaks in a timely manner. The court concluded that this all supported a conclusion that the plaintiffs could not establish their rest break claim through common proof, as is required for class certification.

In the next few months we will see if the California Supreme Court decides to review the case. Until then, this opinion provides employers strong arguments to defend against class certification in California courts.

The bottom line: Employers still should be mindful to review and update their policies, but absent evidence that a non-compliant policy was being followed in practice, plaintiffs will have greater difficulty certifying wage and hour claims even in California.