April 12, 2012
P. K. SCHRIEFFER LLP
Dear Clients and Colleagues,
The California Supreme Court has finally issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court, Case number S166350. The Court held that employers are not obligated to ensure an employee who takes a meal or rest break is truly avoiding work. Further, the Supreme Court re-affirmed the latest trend from the United States Supreme Court that courts must carefully scrutinize purported class action cases, and to deny certification if there are weak common allegations among purported class members. The Court, however, found at least one sub-class could be certified, and remanded another sub-class to the trial court to determine if class certification is proper.
Specifically, the Supreme Court held it is the “employer’s obligation to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purposes he or she desires, but the employer need not ensure that no work is done.” Later in the opinion, the Court held: “(T)he employer is not obligated to police meal breaks and ensure no work thereafter is performed.”
Brinker is an operator of various franchise restaurants and the plaintiffs who sued Brinker were employees who were waitresses, cooks, buspersons, hosts and other hourly employees. They sought relief under California Labor Code (“CLC”) and Industrial Welfare Code (“IWC”) laws and regulations, respectively, including those which require hourly or non-exempt employees to receive meal and rest breaks during a set of hours of work. The IWC, said the Court, has the same force and effect, i.e. same “dignity,” as statutory law.
The class allegations against Brinker were that Brinker (1) provided fewer meal periods than required under the IWC Order no. 5; (2) required employees to take an “early lunch” and then work without any further meal break no matter how long, and (3) required employees to work during meal or rest breaks “off the clock…” It is estimated there are over 60,000 employees in the various classes altogether.
The Court held there was a proper class with reference to sub-class (1) because Brinker had a policy that, by its terms, resulted in fewer breaks than California labor law required. This met the “common question” requirement for a class wide potential liability against Brinker, subject only to calculating individual damages awards. With reference to sub-class (2), the Court held that the “early lunch” policy is not in violation of the IWC Order no. 5, and that a second meal is not required within five hours, as is a first meal break. A second meal break must be provided by the tenth hour, however. Thus, the Court remanded the case to the trial court to determine the number of those who fit within this modified potential sub-class subject to the rule of 10 hours following the first meal break. With reference to (3), the Court held there is no requirement to police employees who are on rest or meal breaks, as noted earlier in this summary.
In reaching its conclusions, the California Supreme Court cited the familiar rule that a trial court should not involve itself in the merits of the case in a class certification motion or hearing. However, the Supreme Court has now recognized the question of “whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits…” This occurs because a court, in a certification motion or hearing, “must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to mange effectively proof of any elements that may require individualized evidence.”
This opinion contains pronouncements on the law which both plaintiffs’ and defense class action counsel will be citing for the foreseeable future. However, it is also clear the California Supreme Court is heeding the counsel from the United States Supreme Court in recognizing the need for careful scrutiny of class action certification motions. The California Supreme Court has also recognized that employers in California may be required to provide meal or rest periods, but not police the conduct of employees who are “on break.”