VIDEO: Pushing Brinker to the limit

By Steven B. Katz

When the state Supreme Court handed down its blockbuster decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), 13 months ago, employers up and down the state unleashed a collective sigh of relief: Brinker's main holding that employers need only provide an opportunity for employees to take meal breaks - not mandate that employees actually clock out and stop working at break time - was generally thought to make it all but impossible for plaintiffs to secure class certification of meal break claims. Since liability turned on whether an employee consented to missing a meal break, most observers concluded that class certification presented an inherently individualized issue that was not susceptible to class treatment, unless the employer had a policy or practice that forbids employees from taking breaks.

But Brinker harbored a dark cloud on the edge of this rosy picture, and a brand-new decision from the Court of Appeal seizes on that cloud to establish a standard which requires class certification where an employer's rest break policy does not fully comply with state law regardless of whether practice under the policy actually violates the law. In effect, employers whose formal policies do not parrot state law comprehensively are vulnerable to class certification by that very fact alone, regardless of the fact that the application of the policy in fact results in substantial (or even full) compliance with the law.

Many employers missed that Brinker actually reversed a lower court order denying class certification of a rest break claim, reasoning that the employer's written policy of providing on 10-minute rest break for every four hours worked did not comply with state requirements that a rest break be provided for every four hours of work or a "major fraction" thereof. Thus, "[c]lasswide liability could be established through common proof if [plaintiffs] were able to demonstrate that, for example, [the employer] under this uniform policy refused to authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight, hours." The Supreme Court directed the lower court to certify this claim without examining whether there was any evidence in the record that employees working 6- to 8-hour shifts were actually denied a second rest break. Its certification ruling rested solely on the fact that the "four corners" of the employer's written policy did not seem to fully embrace the legal standard.

In Faulkinbury v. Boyd & Associates, 2013 DJDAR 6023 (May 10, 2013), the 4th District Court of Appeal took this portion of Brinker to its logical conclusion. Faulkinbury involved a class of security guards who were subject to a uniform policy requiring that the guards take "on duty" meal breaks, during which they remained on call and were paid, which California law permits under limited circumstances. The trial court denied certification of plaintiff's meal break claim, and the Court of Appeal, in a decision handed down before Brinker, affirmed this denial. After the Supreme Court vacated that decision and directed it to reconsider in light of Brinker, the Court of Appeal reversed and ordered the trial court to grant class certification.

This time, Faulkinbury focused on the four corners of the employer's written policy rather than the facts surrounding its implementation. Starting with the proposition that "Brinker teaches that we must focus on the policy itself and address the issue of whether the legality of the policy can be resolved on a classwide basis," the Court of Appeal concluded that "Brinker leads us now to conclude Boyd would be liable upon a determination that Boyd's uniform on-duty meal break policy was unlawful." This stands in contrast the court's original ruling "that even if Boyd's on-duty meal break policy was unlawful, Boyd would be liable only when it actually failed to provide a required off-duty meal break."

Individualized factual issues regarding the latter question - the ultimate question of liability to a particular employee on a particular workshift - "goes to damages, and '[t]he fact individual [employees] may have different damages does not require denial of the class certification motion.'" In other words, Faulkinbury interprets Brinker to require class certification where the question of whether the employer's written policy complies with state law with regard to all of the various employees and circumstances to which it was applied can be determined on a class basis, even if liability for wages and penalties can only be determined on a case-by-case basis.

Such a rule, if generally applied, cannot be reconciled with the U.S. Supreme Court's Rule 23 jurisprudence, exemplified in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), and more recently, in Comcast Corp. v. Behrend, 133 S.Ct. 24 (2012), which hold that class certification should be denied unless liability issues can be entirely disposed of on a class basis. This outcome is all the more puzzling because Brinker cites and quotes Dukes with approval.

While the courts continue to struggle with the impact that Brinker has on both wage and hour laws, and class action doctrine in general, employers should draw the follow lesson from Faulkinbury: while liability under California's meal and rest break laws continues to turn on facts specific to each employee's circumstances (including, especially, whether the employee wishes to take a break on a particular occasion), class certification of such a claim may turn simply on whether the employer's written policy tracks the language of state laws and regulations. It is possible that an employer's policy will be deemed inadequate for class certification purposes even though, ultimately, the employer may not be liable to any employee for any missed breaks.

Steven B. Katz is a partner in Reed Smith LLP's Los Angeles office. He can be reached at skatz@reedsmith.com.

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