On May 10, 2013, the California Court of Appeals in Faulkinbury v. Boyd & Associates reversed its denial of class certification as to meal period and rest period violations in light of the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court.  (Recall, Brinker granted class certification to determine the lawfulness of a uniform rest break policy that allegedly violated the applicable wage order requirements by failing to include the “major fraction” language as directed in the wage order, discussed here.) 

With respect to the meal period violations, plaintiffs alleged that the employer had an unlawful, uniform policy that required employees to sign an on-duty meal period agreement and take on-duty meal periods.  In light of Brinker, the Court held that the claim for meal period violations was amenable to class treatment because the employer’s “on-duty meal policy was uniformly and consistently applied to all . . . employees.”  Faulkinbury at 13.  The Court explained that “the employer’s liability arises by adopting a uniform policy that violates the wage and hour laws. Whether or not the employee was able to take the required break goes to damages, and ‘[t]he fact that individual [employees] may have different damages does not require denial of the class certification motion.’”  Faulkinbury at 15-16 (emphasis added).  This decision arguably runs counter to the Supreme Court’s recent decision in Comcast Corp. v. Behrend, in which the Supreme Court rejected class certification based on plaintiffs’ damages model, as discussed here.  

With respect to rest period violations, plaintiffs alleged that the employer had no formal rest break policy and had an express policy requiring employees “to remain at their posts at all times.”  Faulkinbury at 16-17.  Consistent with its decision as to meal period violations, the Court held that “the lawfulness of [the employer's] lack of rest break policy and requirement that all security guard employees remain at their posts can be determined on a classwide basis.”  Id. at 18.  Employees’ individualized rest break practices would “at most” establish “individual issues of damages, which would not preclude class certification.”  Id. at 18-19.  The employer’s liability, if any, “would arise upon a finding that its uniform rest break policy, or lack of policy, was unlawful.”  Id. at 19.