In April, the California Supreme Court issued its decision in Brinker Restaurant Corp. v. Superior Court of San Diego, which clarified standards for certifying a class in a claim alleging an employer's failure to provide meal and rest breaks. Notwithstanding this guidance, some members of the plaintiffs' bar have persisted in seeking class certification of these claims.
The Court of Appeal has now published its first decisions discussing Brinker - Hernandez v. Chipotle Mexican Grill, Inc. (August 29, 2012) and Lamps Plus Overtime Cases (September 5, 2012). In each case the Court of Appeal applied Brinker to uphold a decision denying class certification. Hernandez and Lamps Plus originally were not officially published, and thus could not be cited as precedential authority in other cases. Seyfarth Labor & Employment lawyers filed amicus letters requesting the Court of Appeal to certify both cases for publication.
The Hernandez Decision
The employees in Hernandez contended that Brinker approvingly cited Cicairos v. Summit Logistics, Inc., which concluded that employers have "an affirmative obligation to ensure that workers are actually relieved of all duty." The Court of Appeal rejected this contention, noting first that the Cicairos decision had relied on an opinion letter by the Department of Labor Standards Enforcement, which the DLSE has now withdrawn. The court also stated that Brinker "conclusively resolved" that employers need only "provide" meal breaks (rather than "ensure" they are taken).
The Hernandez plaintiffs also contended that Brinker's citation to Jaimez v. Daiohs USA, Inc., suggests that the trial court should not have addressed the legal issue of "provide" versus "ensure" at the class certification stage. In Jaimez, the trial court found it unnecessary to decide whether employers need only "provide" meal breaks because predominant common factual issues "made it impossible" for employees to take breaks. The Court of Appeal in Hernandez rejected the plaintiffs' argument, confirming that Brinker established that "[t]o the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them."
Applying Brinker's standards to the employee declarations submitted to the trial court, the Court of Appeal in Hernandez explained that the employees' varying experiences suggested the need for individualized analyses, "perhaps supervisor-by-supervisor," to determine whether the employer violated the requirement to provide breaks. The Court of Appeal also rejected the plaintiffs' contention that a 92% incidence of employees missing at least one break demonstrated a "pattern or practice of missed breaks," which is what Brinker requires. Finally, the Court of Appeal affirmed the trial court's reliance on something Brinker did not address - a conflict of interest within the proposed class. The trial court permissibly had concluded that a conflict arose because some putative class members held supervisory roles with responsibility for providing meal and rest breaks to other class members.
The Lamps Plus Decision
The Lamps Plus plaintiffs asserted that the trial court had erred in denying class certification, as none of their asserted claims required individualized inquiries. The Court of Appeal in Lamps Plus disagreed: "any debate about an employer's obligation regarding meal breaks has been squarely resolved by Brinker," and Brinker foreclosed the plaintiffs' arguments by establishing that employers need only "provide" meal breaks.
The Lamps Plus decision (written by the same justice who wrote the Hernandez opinion) also rejected the plaintiffs' reliance on the Brinker court's citation to the Cicairos and Jaimez decisions. The Court of Appeal explained that in Cicairos "the work environment effectively deprived [employees] of an opportunity to take breaks." So, while an employer may not pressure employees to skip breaks, that obligation is not tantamount to an obligation to ensure that employees actually take their breaks. Distinguishing Jaimez, the Court of Appeal explained that the employer's practices in Jaimez - such as deducting 30 minutes of pay per shift regardless of whether a meal break was taken - presented common and predominant issues that did not exist here.
In applying Brinker to the evidence before it, the Court of Appeal in Lamps Plus affirmed the trial court's denial of certification on the basis that the employer "did not have a universal practice of denying employees their breaks." Dismissing the employees' contention that "chronic understaffing" led to classwide violations (as they allegedly did in Jaimez), the Lamps Plus court stated the evidence showed only that employees had difficulty taking breaks during certain busy periods.
The Lamps Plus court also rejected the plaintiffs' reliance on time records, explaining that this evidence did not show a "universal practice," absent explanations of why breaks were not taken. As a result, it was unnecessary to address evidence that 91.9% of a sample of employees experienced meal break violations. Similarly, the court rejected expert evidence that failed to address why breaks were not taken in specific instances.
The Lamps Plus court also affirmed the trial court's denial of class certification for off-the-clock claims even though one-half of the employees reported working off the clock. Although not citing Brinker, the Lamps Plus court confirmed that, because the employer had a policy requiring employees to record their hours worked, "[d]etermining whether [an employer's] managers knew or should have known about off-the-clock work will be a fact-intensive inquiry, necessarily involving investigation of the individual circumstances of each employee's off-the-clock work."
The Lamps Plus court also affirmed the denial of class certification for waiting-time penalty claims. Acknowledging that the employer had failed to document the date of payment for final wages, the court explained (1) that an employer does not have an obligation to record those dates, and (2) that Brinker's concurrence (suggesting an employer's failure to keep time records creates a rebuttable presumption that violations existed) is not the law.
Finally, in affirming the denial of class certification for itemized wage-statement claims, the Lamps Plus court noted that such claims require demonstrable "injury" (leading to individualized inquiries), and the derivative nature of the claim meant that it failed along with the other claims as to the certification issue.
Though affirming that the trial court's denial of class certification for all claims was proper, the Lamps Plus court also upheld the trial court's conclusion that the class representatives were inadequate. The court noted its concerns regarding their credibility, as the evidence indicated the class representatives demonstrated unreliable memories, a "lack of candor," and a lack of "sincerity in trying to honestly answer questions."
What Hernandez And Lamps Plus Mean For Employers
Although Brinker did the heavy lifting, Hernandez and Lamps Plus confirm that Brinker "conclusively resolved" that an employer's obligation is only to "provide" breaks and not "ensure" they are taken. While this point was established by Brinker, the publication of Hernandez and Lamps Plus now provides controlling authority for how Brinker is to be applied to other types of meal and rest break policies and its impact on class certification of such claims. Moreover, Hernandez and Lamps Plus highlight the importance of factors showing how even an otherwise certifiable class can be rejected because of the inadequacy of the proposed class representatives.
However, as Hernandez and Lamps Plus acknowledge, Brinker did rely on Cicairos for the proposition that "an employer may not undermine a formal policy of providing meal breaks by pressuring employers to perform their duties in ways that omit breaks." As a result, meal and rest break claims are not "categorically uncertifiable." Thus, Hernandez and Lamps Plus should remind employers with lawful meal and rest break policies that class meal and rest break claims may still be certified if some other "company-wide policy and practice" effectively deprives employees of the opportunity to take breaks. Lamps Plus, however, importantly rejected a "chronic understaffing" theory asserting that the employer's staffing model prevented employees from taking breaks, regardless of that employer's lawful policy. As a result, to avoid potential meal and rest break class actions, employers should ensure that no company-wide policy or practice could be construed as leading to a "universal practice of denying employees their breaks."