In Considering Class Action Certification Order in Labor Law Class Action, California Supreme Court Holds Rest Periods Not Mandated Prior to Meal Periods, and Employer must Provide Meal Breaks but need not Ensure Employee Takes Meal Breaks
Plaintiffs filed a putative class action in California state court against their employer, Brinker Restaurant, alleging various labor law violations; specifically, the class action complaint alleged that Brinker failed to provide employees with rest breaks, failed to provide employees with meal breaks, and that Brinker required employees to work “off-the-clock.” Brinker Restaurant Corp. v. Superior Court, ___ Cal.4th ___ (April 12, 2012) [Slip Opn., at 1, 4]. With respect to the meal period claim, plaintiffs argued that state law requires employers “to provide a 30-minute meal period at least once every five hours.” Id., at 5. Defense attorneys argued that state law does not so long as it provides one meal period for work shifts exceeding 5 hours and two meal periods for work shifts exceeding 10 hours, then it has complied with state law. Id. Brinker also argued that individual issues predominated so that class action treatment would be inappropriate, id. Specifically, Brinker argued that it was required only to permit its employees to take meal and rest breaks, but it was under no legal obligation to ensure that its employees take such breaks. Id., at 6. Plaintiffs moved the trial court to certify the litigation as a class action, id., at 5. The trial court agreed with plaintiffs, and granted plaintiffs’ motion to certify the lawsuit as a class action. Id., at 7. The Court of Appeal granted Brinker’s petition for writ relief and reversed. The Court of Appeal concluded that common issues did not predominate as a matter of law, and therefore the trial court erred in certifying the claims for class action treatment. Id., at 15. The California Supreme Court granted review and held (1) the trial court properly certified the rest break claim for class action treatment, (2) improperly certified the “off-the-clock” claim, and (3) needed to reconsider the meal period claim. Id., at 1-2. Importantly, with respect to the meal break claim, the Supreme Court held that “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Id., at 2.
The Supreme Court decision in Brinker has been awaited by both sides of the class action bar. Unfortunately, the decision creates as many questions as it solves. For example, with respect to the general rules governing class certification, the Supreme Court recognized that both state and federal decisions hold that consideration of the merits may overlap class certification issues. See Brinker, at 10-12. The Court also held 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.” Id., at 13. However, in the next breath, the Supreme Court stated that “a court generally should eschew resolution of such issues unless necessary,” id. And relying on its prior decisions, the Court strongly discouraged trial courts from considering the merits of a claim in determining class certification. See id., at 11. But the Court summarized its holding as follows: “if the presence of an element necessary to certification, such as predominance, cannot be determined without resolving a potential legal issue, the trial court must resolve that issue at the certification stage.” Id., at 14. So precisely when trial court consideration of the merits is necessary or prohibited is less clear post-Brinker.
As for the legal issues, the Supreme Court began with the rest period claim. It held that the correct interpretation of California’s labor code and the relevant Wage Order requires that “an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on.” Brinker, at 19. However, no rest period need be provided to employees who work less than 3-1/2 hours per day. Id., at 18. The Court also rejected plaintiffs’ argument that a rest period must be provided prior to any meal period. Id., at 22-23. California law requires rest periods fall “in the middle of work periods ‘insofar as practicable,'” but that does not mean the law is violated if no rest period is provided prior to any meal period. Id., at 22-23.
Turning to the class certification order, the Supreme Court held that even though plaintiff advanced “multiple theories of liability” and even though the trial court did not apply the correct legal standard governing rest periods, class action treatment was not an abuse of discretion. Brinker, at 24. The Court held that the only issue was “whether any of the rest break theories of recovery advanced by [plaintiffs] were ‘likely to prove amendable to class treatment.'” Id. (citation omitted). As to that single issue, “Brinker conceded at the class certification hearing the existence of a common, uniform rest break policy.” Id., at 25. Accordingly, “Classwide liability could be established through common proof if [plaintiffs] were able to demonstrate that, for example, Brinker under this uniform policy refused to authorize and permit a second rest break of employees working shifts longer than six, but shorter than eight, hours.” Id. In other words, because the merits should not be considered in ruling on class certification, “The theory of liability – that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law – is by its nature a common question eminently suited for class treatment.” Id.
With respect to the meal period claim, the Supreme Court held that an employer is legally obligated to provide employees with meal breaks during which time the employee is “relieve[d]…of all duty for the designated period,” but the employer is not required to “ensure that the employee does no work” during that period. Brinker, at 27. Further, with respect to the timing of such breaks, California law imposes no requirements on the timing of when the meal breaks must be given; rather, all that is required is that the employer “provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.” Id., at 50.
As for the trial court’s decision to grant class action treatment to the meal period claim, the Supreme Court’s analysis is less than clear. The Court first set forth the basis of the trial court’s order: “‘Although a determination that defendant need not force employees to take breaks may require some individualized discovery, the common alleged issues of meal and rest violations predominate.’ Thus, it reasoned that even if Brinker were correct about the nature of its duties, to treat the case as a class action would still be the better course.” Brinker, at 50. This last sentence reads much like the reasoning used by the Court to affirm class action treatment of the rest period claim. The Supreme Court added, however, that at the request of the parties the trial court agreed to rule on plaintiffs’ claim concerning the timing of meal breaks and concluded that California law “required a meal period every five hours.” Id., at 50-51. Based on the Supreme Court’s decision, that ruling was incorrect and, accordingly, the definition of the class “includes individuals with no possible claim.” Id., at 50-51. The Court concluded, therefore, that remand was necessary:
Under the unique circumstances of this case…, we need not decide whether the trial court erred. Our subsequent ruling on [plaintiffs’] meal timing theory, solicited by the parties, has changed the legal landscape; whether the trial court may have soundly exercised its discretion before that ruling is no longer relevant. At a minimum, our ruling has rendered the class definition adopted by the trial court overinclusive: The definition on its face embraces individuals who now have no claim against Brinker. In light of our substantive rulings, we consider it the prudent course to remand the question of meal subclass certification to the trial court for reconsideration in light of the clarification of the law we have provided. Id., at 51.
Finally, the Supreme Court addressed the “off-the-clock” claim, and concluded that no substantial evidence supported the trial court’s conclusion that common questions predominate. Brinker, at 51. Brinker’s company policy forbids employees from working off-the-clock, and plaintiffs presented no substantial evidence that Brinker pressured employees to do so. Id., at 52. Individual issues would predominate, id., at 52-53. “On a record such as this, where no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by-employee fashion, demonstrating who worked off the clock, how long they worked, and whether Brinker knew or should have known of their work.” Id., at 53. Accordingly, the trial court erred in certifying the off-the-clock for class action treatment.
NOTE: It is troubling that the trial court’s error in law constituted a “unique circumstance” that could have been avoided by not ruling on the legal issue at all. Of course, that would have meant that the class definition for meal periods would include individuals without a valid claim against Brinker. One would think that the necessity (or at the very least preference) to include only individuals with possible claims in the definition of the class would qualify as a circumstance wherein the propriety of certification depends on the determination of a threshold legal issue that the trial court “may, and indeed must, resolve,” Brinker, at 13. On the other hand, class action treatment of the off-the-clock claim was reversed for lack of substantial evidence, which suggests a consideration of the merits of the claim. It is for this reason that the Court’s discussion of the standard for ruling on class certification is unclear.
Further, and perhaps reflecting the internal conflict in agreeing upon and applying a clear policy for class action certification, the author of the majority opinion took the extraordinary step of writing also a concurring opinion. Justice Werdegar explained that her concurring opinion was “[f]or guidance on the issue we remand, meal period subclass certification.” Brinker, at 1 (Werdegar, J., concurring). The author of this blog has never before seen a situation where the author of the majority opinion “concurs” in their own opinion. From a purely practical perspective, if Justice Werdegar had enough votes to support the views she expresses in the concurring opinion, then there would have been no need for the concurring opinion. To the extent the concurring opinion is suggesting that the trial court should again certify the meal period claim as a class action, it defeats the purpose of remand expressed in the majority opinion.