[authors: Greg Mersol, Dawn Kennedy]

The California Court of Appeal has maintained the recent post-Brinker trend of refusing to certify cases involving meal and rest period claims where an employer has a compliant break policy. In 2004, plaintiff Morry Brookler, a former RadioShack employee, asserted claims for meal period violations on behalf of “all non-exempted employees at RadioShack stores from April 7, 2000 through the present who were not provided an uninterrupted 30-minute meal break following every 5 continuous hours of work.” Brookler’s case has been the subject of a game of “hot potato” ever since.

In February 2006, the trial court certified Brookler’s proposed class in reliance on Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 939 (2005) (“Cicairos”), a California Court of Appeal decision that appeared to say that the employer had an affirmative obligation to make sure that employees actually took their meal period.

In July 2008, a different California Court of Appeal published its opinion in Brinker Restaurant v. Superior Court, 80 Cal. Rptr. 3d 781 (2008), holding that an employer must provide, but need not ensure, an uninterrupted 30-minute meal break for its non-exempt employees. Unlike the court in Cicairos, this appellate court found that liability would necessarily depend on a highly individualized inquiry as to why meal periods were not taken. It therefore held, in contrast to Cicairos, that the trial court had improperly certified the class.

One month later, RadioShack filed a motion to de-certify the class based on the Court of Appeal decision in Brinker. In support of its motion, RadioShack relied upon evidence of its legally compliant meal period policy, training given to store managers in scheduling employee meal periods, software used by store managers to schedule breaks, and deposition transcripts of 21 employees. The deposition testimony reflected an array of reasons why employees missed meal periods, including the voluntary decision to keep working to earn more money, to leave work early, or to avoid eating alone.

In October, 2008, relying on the Court of Appeal decision in Brinker, the trial court granted RadioShack’s motion. The court credited RadioShack’s evidence and held that “in order to determine Defendant’s liability … individual inquiry would be necessary of each class member to determine if he/she missed a meal period, and if so why.” This ruling triggered a trip through the appellate courts that resembled the old video game of “Pong.”

Later that same month, the California Supreme Court granted review in Brinker and Brookler appealed the decertification order. In August 2010, the California Court of Appeal reversed the trial court’s order in reliance upon Cicairos. In September, RadioShack filed a petition for review.

In June 2012, the California Supreme Court transferred the matter back to the California Court of Appeal with directions to vacate its prior decision and to reconsider in light of the California Supreme Court’s decision in Brinker Restaurant v. Superior Court, 165 Cal. 4th. 1004 (2012) (“Brinker”) in April 2012. In Brinker, the Supreme Court agreed with the Court of Appeal’s articulation of the “provide, not ensure” standard for meal periods.

Not easily discouraged, Brookler once again relied upon Cicairos. The Court of Appeal roundly rejected Brookler’s argument that Cicairos preserved his class allegations, observing that Brinker had clearly dispensed with the proposition that an employer must police its employees to ensure that breaks are actually taken. On this basis, the Court of Appeal affirmed the trial court’s decertification order.

The Bottom Line: In the wake of Brinker, many courts are now reluctant to certify cases based on rest and meal period violations.