On November 13, 2014, the Second District Court of Appeal, Division One, issued a decision in Walgreen Co. Overtime Cases.  The opinion explains the meaning of Brinker Restaurant Corp. v. Superior Court as it applies to the duty to “provide” a meal period in a style that is so simple that a child could understand it.  Unfortunately, it is so clear in its conclusions that we fear that it will be depublished.

The Walgreens case posed a typical meal period situation.  A retailer has a facially lawful meal period policy that purports to permit employees to take a 30-minute off duty meal period within the first five hours of their eight-hour shift.  Plaintiff brought a class action asserting that, despite the seemingly lawful policy, “Walgreens’s actual practice departed from its stated policy in an illegal and classwide way.”  Before digging into the factual record, the Walgreens court (led by L.A. Complex Court Judge, Hon. Sheppard Wiley, sitting by designation) attempted to set forth the rules concerning California meal period law as announced in the California Supreme Court landmark 2012 Brinker decision.

Judge Wiley first explained that there were two competing interpretations of the requirement to “provide” a meal period before Brinker.  First, there is the “make available” standard:

“Under the make available standard, the employer merely must make meal breaks available. That is, the employer must relieve the employee of all job duties for the meal break, and then the employer may allow employees to decide for themselves whether to take the break. This make available standard thus allows an employee to choose to skip the break and, for instance, to leave work early instead.”

By contrast, plaintiffs favor the “ensure” standard which Judge Wiley described as follows:

“Under the alternative ensure standard, an employer must ensure employees take breaks. That is, an employer must make workers take meal breaks whether they want them or not. Employers are liable for missed meal breaks even when workers choose to skip their breaks because the ensure rule makes breaks mandatory.”

Judge Wiley then explained that class actions are simple to certify under the ensure standard because one can simply review records and identify patterns of employees not clocking out for breaks (or doing so too late, or for too short a period of time).  Under the make available standard, however, “you additionally must ask why the worker missed the break before you can determine whether the employer is liable.”  Thus, “if the worker was free to take the break and simply chose to skip or delay it, there is no violation and no employer liability.”

After setting forth these two interpretations of the meal period law, Judge Wiley clearly picks a side: “Brinker adopted the make available standard and rejected the ensure standard.”  Judge Wiley noted that the difference in wording was purely semantic between “make available” and what Brinker specifically held—that the employer must “relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”

Applying that standard to the facts of the case, the Walgreens panel had no difficulty affirming the denial of class certification.   The court noted that Plaintiff attempted to establish class certification through an expert declaration from the economist Phil Gorman who simply analyzed the number of shifts without a recorded break of thirty minutes in the first five hours.  Because the mere record analysis could not show whether the breaks were made available, Mr. Gorman’s testimony was properly discounted.

Plaintiff also pointed to e-mails produced during discovery that showed that management was aware that employees in many stores were sometimes skipping breaks.  The e-mails exhorted local management to require employees to take meal breaks.  Judge Wiley noted that this would suggest that the company was meeting its duty to provide meal periods rather than shirk it because it was issuing orders that employees take breaks.

Plaintiff also relied on 44 cookie-cutter declarations that, in nearly identical wording,  stated that the signing employees faced occasions where “meal periods were not made available to me.”  However, when deposed several of these declarants recanted their testimony and one, Ms. Griswold, even said that the declaration misrepresented what she had told the lawyer, but she signed the declaration without reading it: “So Griswold said one thing, the lawyers wrote down another, and Griswold blindly signed whatever they sent her.”

On such a record, it is not surprising that the lower court found predominant individualized issues and that the appellate court affirmed.  The only problem with the decision is that Judge Wiley may have unnecessarily overreached by pointing out that certain language in the concurring opinion of Brinker, where Justice Werdegar was joined only by Justice Liu, should not be considered in analyzing Brinker because “concurring opinions are not binding precedent.”  A similar observation was contained in two post-Brinker decisions that similarly affirmed denial of class certification of a meal period class (Chipotle and Lamps Plus) and both cases were subsequently depublished.

It would truly be a shame if this case was depublished.  It states the law on meal periods in prose that is easier to understand than any other wage/hour decision we have reviewed (and we reviewed a lot of them). Given the continuing trend for plaintiffs to file vague claims that “all non-exempt employees were denied meal periods,”  Walgreens should be cited in many future briefs denying class certification—if it survives.