Got Class? Wage and Hour Class Actions in a Post-Brinker World

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In 2012, employers awaited the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court with the bated-breath anticipation of a presidential election, or an Olympic luge race. And, boy, was it worth the wait. Crowds cheered and hurrah’d upon hearing that the highest court in California went with pragmatism and reason as it announced that employers need not police meal and rest periods so long as they provided them and gave employees the freedom to take them.

In light of the Brinker decision, attorneys, thought-leaders and tarot readers all sounded the death knell of the wage and hour class action dragon, emphasized by the Brinker Court’s joining with the U.S. Supreme Court’s decision in Wal-Mart, Inc. v. Dukes, that “what really matters to class certification is not similarity at some unspecified level of generality but, rather, dissimilarity that has the capacity to undercut the prospects for joint resolution of class members’ claims through a unified proceeding.” But have those predictions bore out? Has the wage and hour class action gone the way of the dinosaurs?

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