In the wake of the California Supreme Court’s decision in Brinker Restaurant v. Superior Court, 165 Cal. 4th 1004 (2012) (see our post on the decision), cases refusing to certify rest and meal period have become far more common as a recent decision from the United States District Court for the Central District of California demonstrates. This case also demonstrates that even where plaintiffs have unusually good evidence of when employees might be taking (or not taking) their breaks, courts are still refusing to certify the claims because individual issues predominate.
In Gonzalez v. OfficeMax North America.pdf., Case No. 8:07-cv-00452-JVS-MLG (C.D. Cal. Nov. 5, 2012), the plaintiffs were nonexempt employees of the OfficeMax retail chain working in California. In 2008, before the California Supreme Court accepted Brinker for review, they brought suit, claiming that they were denied rest and meal periods as required by California law. They sought to represent a class of approximately 9,000 workers state-wide. The district court expressed its misgivings about the class, but stayed the matter pending the Brinker decision.
In light of Brinker’s holdings, it is not surprising in one sense that the court found that the case was not suitable for class action treatment. The court found that since the employer’s obligation was only to make breaks and meal periods available, the claims would necessarily have to be decided on an individual basis.
What makes the decision interesting, however, is that the employer had employees punch in and out for their breaks, so there was at least decent evidence of the breaks that employees were taking (although there were many instances in which employees failed to punch in or out), but the court still found that the claims would require individualized inquiries. It rejected arguments by the plaintiffs, inadvertently supported in part by the defendant’s expert, that stores were not heavily staffed and that customer demands might cause an employee to miss his or her break. The court found that the plaintiffs showed that they had missed their breaks, but had failed to show what state-wide policy had caused them to do so. Given the need for individual inquiries both on the meal and rest period claims, the court refused to certify the case.
Gonzales is the latest in a string of California cases denying certification of rest and meal period cases in Brinker’s wake. It also rejects some creative arguments by plaintiffs’ counsel to hold a class together despite Brinker’s pronouncements.
The Bottom Line: Courts are increasingly refusing to certify rest and meal periods after Brinker despite creative lawyering by plaintiffs’ counsel.