Class Action Complaint Alleging Failure to Provide Meal and Rest Breaks not Entitled to Class Action Treatment because Employers need only “Offer” or “Authorize” Employees to Take Meal and Rest Breaks but need not Ensure that Employees Take Them California Federal Court Holds
Plaintiff filed a class action complaint in California state court against her former employer, McDonald’s, on behalf of hourly, non-exempt employees; the class action alleged that she did not receive all of her meal or rest breaks. Kimoto v. McDonald’s Corp., ___ F.Supp.2d ___ (C.D. Cal. August 19, 2008) [Slip Opn., at 1-2]. Defense attorneys removed the class action to federal court, id., at 1-2. Defense attorneys filed a motion to deny class action treatment; plaintiff’s lawyers filed a cross-motion for class certification. Id., at 2. Defense attorneys advanced several grounds for denying class action certification, including that plaintiff could not establish Rule 23(a)’s typicality or adequacy of representation requirements for her meal and rest period claims, that she could not establish Rule 23(b)(3)’s commonality and superiority requirements for her meal period, rest period, wage statement and overtime claims, that she lacks standing to pursue the wage statement claims, and that she is barred from seeking class action treatment because of her failure to seek class certification within the 90-day requirements of the court’s Local Rules or at an “early practicable time” within the meaning of Rule 23. Id., at 4. The district court denied class action certification both as untimely and on the merits.
With respect to the timing of plaintiff’s motion to certify the litigation as a class action, the district court found that plaintiff failed to comply with Rule 23(c)(1)(A)’s mandate to seek class certification at “an early practicable time after a person sues or is sued as a class representative.” Kimoto, at 4. Specifically, the motion was not filed until August 14, 2008 – a full month after the discovery cut-off date, and only two months before trial. Id. In fact, plaintiff waited until “the last date to file a motion of any kind in this action.” Id. The fact that the district court permitted plaintiff to file the motion as late as she did was not dispositive: As the federal court found at page 4, “Given that trial is just two months away, the Court does not find this to be ‘an early practicable time’ under Rule 23(c)(1)(A).” This is particularly true in light of the fact that the parties had previously requested permission of the court to have the motion on class certification heard as late as August 4, but the court denied the motion on the ground that such a late hearing date would be inappropriate. Id., at 4.
The federal court also denied class certification on the merits. The central issue with respect to commonality of the class action claims was whether an employer is required to “ensure” that plaintiff took meal and rest breaks, as plaintiff argued, or whether an employer need only “offer” or “authorize” employees to take meal and rest breaks. See Kimoto, at 5-7. While the California Supreme Court has not yet addressed the issue, the district court found persuasive several cases cited by defense attorneys, particularly the recent California state appellate court opinion in Brinker Restaurant Corp. v. Superior Court, ___ Cal.Rptr.3d ___ (Cal.App. July 22, 2008), our summary of which may be found here. See id.¸ at 7-9. These cases hold that “‘the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason.’” Id., at 7 (quoting White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088-89 (N.D. Cal. 2007)). This showing, almost by definition, must be made on an individual basis; accordingly, the district court held that “it is apparent that Plaintiff has failed to identify any theory of liability that present common questions that predominate.” Id., at 9. As the court explained at page 9, “Assessing whether a McDonald’s employee was authorized by his or her manger to take a rest or meal period would require an individualized, highly fact-specific inquiry to determine whether a divergent method applied in a particular restaurant, by particular managers, to particular shifts, to particular crew members.” Accordingly, the district court concluded that plaintiff could not establish commonality and therefore granted the defense motion to deny class certification. Id., at 10.