Decision: In In re: Walgreen Company Overtime Cases, a California appellate court refused to revive a putative class action that alleged that Walgreens had not given employees adequate meal breaks. The plaintiff had advanced the theory that, although Walgreens’ stated meal period policy was adequate, its actual practice departed from the stated policy in an illegal and classwide way. In upholding the district court’s decision denying class certification, the appellate court clarified that under the make available standard espoused by the California Supreme Court, “[i]f the employer provides a break opportunity to the worker, the employer incurs no liability if the employee then decides to skip or delay the break.” Indeed, “the fact of a missed break [in an employee’s time records] does not dictate the conclusion of a violation (and thus employer liability) . . . . [U]nder the make available standard you additionally must ask why the worker missed the break before you determine whether the employer is liable.” The court rejected the plaintiff’s argument that there is a rebuttable presumption in California that the employee was not provided a meal period merely because the employer’s records show no meal period for a given shift. Accordingly, the court rejected as “invalid” the opinion of the plaintiff’s expert statistician because his opinion was premised on a “legally unsound” assumption that there was a Labor Code violation every time a worker did not take a timely break. The court also found that emails in which Walgreens managers pressured employee to take meal periods bolstered Walgreens’ case that it made meal breaks available to employees.

Impact: The appellate court’s decision highlights the increasing difficulty employees face in certifying meal break classes in California. The court’s decision also reinforces the importance of having a legally compliant meal period policy and of documenting training and other efforts to remind managers of the obligations to make meal breaks available.