Post-Brinker Class Certification Decisions – Where are they now?

by Orrick - Global Employment Law Group
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Brinker continues to impact meal and rest period and off-the-clock cases as lower courts continue to grapple with the contours of its application. Several cases at the appellate level were remanded after the California Supreme Court’s Brinker decision, and those cases are now working their way through the lower courts. On our July 6, 2012 blog post, we identified three post-Brinker decisions denying class certification in meal period cases. Below is a brief summary of post-Brinker decisions issued since our last update.

Hernandez v. Chipotle Mexican Grill, Inc., No. B216004 (Cal. App. Aug. 21, 2012). Affirming  the trial court’s denial of class certification under California CCP § 382 for hourly workers at Chipotle restaurants, the appellate court opined that plaintiff’s claims for missed meal and rest breaks were not suitable for class treatment. Chipotle preemptively moved to deny class certification, contending that it had provided breaks as required by California law. The defendant also argued that it paid employees through meal breaks, so employees did not necessarily have an incentive to accurately record when they took their meal breaks. Plaintiff, on the other hand, argued that defendant had not adequately ensured that its employees took breaks, and on that basis was liable for any missed breaks. Both prior to and following Brinker, the trial court, and then the court of appeal, disagreed with plaintiff. First, the court determined that the defendant only had a responsibility to authorize and permit rest breaks, and to provide meal breaks, rather than ensure they were taken. Defendant’s declarations demonstrated that there were employees who were authorized and permitted to take rest breaks, and who were provided meal breaks. Plaintiff’s evidence showed that some employees had missed breaks. Given the differences in the experience of the putative class members, there was no “universal practice” with regard to breaks. The court of appeal agreed with the trial court’s determination that plaintiff would be required to present a restaurant-by-restaurant and perhaps supervisor-by-supervisor analysis of break policies and practices at trial. The only common company-wide policy or practice was defendant’s evidence that it provided employees with meal and rest breaks as required by law. The court also agreed with the trial court’s finding that substantial evidence of a conflict of interest existed, because putative class members were able to move in or out of supervisory roles with the responsibility of providing meal and rest breaks for themselves and other employees on shift. Therefore, some putative class members may accuse other supervisory putative class members of violating their meal and rest period rights. This scenario created the likelihood that some class members might be called to testify against other class members, which demonstrated “antagonism of so substantial a degree as to defeat the purpose of class certification.” The originally unpublished decision was subsequently published by the court on August 30, 2012.

Flores v. Lamps Plus, No. B220954 (Cal. App. Aug. 21, 2012). Finding that its original decision in this case was consistent with Brinker, the appellate court again affirmed the trial court’s denial of class certification of employee meal and rest break claims brought against the retail lighting chain. In reviewing the trial court’s ruling, the appellate court agreed that individual issues predominated over common issues as to the meal and rest period claims. The court noted that the depositions, questionnaire responses, and declarations of the proposed class members demonstrated that the company did not have a companywide practice of denying breaks to its employees. Indeed, the breadth of alleged violations was widely variable, with some workers reporting that they often missed breaks, others saying they always took them, and others saying they took one or the other but not both. In fact, “the only evidence of a companywide policy and practice was the evidence that Lamps Plus had a policy to provide employees with meal and rest breaks as required by law, and that employees were disciplined for failing to conform to that policy.” Given the variation in experiences, the appellate court agreed with the trial court’s determination that the proposed class did not show a common practice or policy. The court also rejected plaintiff’s unsupported theory that chronic understaffing led to class-wide violations of the meal and rest period laws.

Brinkley v. Public Storage, Inc., No. B200513 (Cal. App. Aug. 2, 2012) (unpublished). Affirming the trial court’s order granting defendant summary adjudication, the court rejected plaintiff’s theory that defendant was under an obligation to ensure that all employees took meal and rest breaks. The court found that defendant produced substantial evidence that it provided meal breaks to plaintiff and other employees, as required by California law. Defendant showed that it had a written meal and rest break policy, plaintiff and other managers were aware of the policy, defendant reprimanded employees for not taking meal periods, and defendant advised plaintiff and others at a meeting that they were required to take meal and rest breaks. Defendant also produced declarations from 21 managers who reported that they were allowed to take meal periods at their own discretion. On the other hand, plaintiff produced no admissible evidence that he or other meal period subclass members were denied an opportunity to take meal breaks, or were otherwise precluded by defendant from taking breaks. As for plaintiff’s Labor Code § 226 claim, the court also found that an employer cannot be liable for misstatements on paystubs unless it knowingly and intentionally makes such misstatements and an employee suffers injury as a result. Defendant filed a declaration stating that the paystub misstatement was inadvertent and, when discovered, corrected. Plaintiff failed to produce any evidence of knowing or intentional conduct by defendant, with the result that he could therefore not establish an essential element of his claim.

Decisions Still Pending:

The California Supreme Court granted review in other class certification decisions involving meal and rest period claims, and has subsequently remanded these cases with instructions to review in light of its decision in Brinker. To date, these cases are still pending. See Tien v. Tenet Healthcare, Inc., Faulkinbury v. Boyd & Assoc., Bradley v. Networkers Int’l LLC, and Brookler v. Radioshack Corp.

 

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