Companies with employees in California will recall last year's landmark California Supreme Court decision in Brinker v. Superior Court (April 12, 2012), which confirmed that employers need only "permit" hourly employees to take meal periods in compliance with state law. By rejecting the stricter "ensure" standard, the Court made it more difficult for plaintiffs to certify meal period claims, as consideration of individual issues will typically be required to determine if certain class members simply chose not to take a meal period.

While the majority of courts applying the "permit" standard have denied class certification, the San Diego Superior Court on remand in Brinker has again certified the plaintiffs' meal period claim and denied decertification of their rest period claim. See Hohnbaum v. Brinker Restaurant Corporation (Sept. 25, 2013). This ruling reminds employer that the plaintiffs' bar and a number of California judges very much like wage and hour class actions and will not give them up easily. Thus, employers must remain vigilant in drafting, communicating, implementing, and enforcing their policies.