Court of Appeal Turns Volume Down on Plaintiff in Meal Period Class Action Against RadioShack

by BakerHostetler
Contact

[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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!