High court unlikely to stray far from Brinker

In Cole v. CRST Van Expedited, Inc., 2019 DJDAR 7127, the 9th U.S. Circuit Court of Appeals certified two questions regarding meal and rest breaks to the California Supreme Court that have perplexed litigators and courts alike. Under California law, employers must provide nonexempt employees with an uninterrupted, unpaid 30-minute meal break on all shifts of greater than five hours (and additional meal breaks on shifts over ten hours). They must also provide nonexempt employees with one paid 10-minute rest break for each four hours worked or major fraction thereof.

First, the 9th Circuit asks, "Does the absence of a formal policy regarding meal and rest breaks violate California law?" As the court observed, California courts have held that class certification is appropriate where plaintiffs alleged that employers violated the law by failing to adopt formal policies. E.g., Benton v. Telecom Network Specialists, Inc., 220 Cal. App. 4th 701, 724-25 (2013); Bradley v. Networkers Int'l, LLC, 211 Cal. App. 4th 1129, 1150 (2012).

While an employer's lack of a formal policy could in many cases make for an attractive class theory, does it by itself establish a violation of law? It is unlikely that the California Supreme Court will hold that it does. In Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), the seminal meal and rest break case, the court explained that the employer satisfies its obligation to provide breaks "if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted ... break, and does not impede or discourage them from doing so." All of these actions can be taken without a formal policy. See Dailey v. Sears, Roebuck & Co., 214 Cal. App. 4th 974, 1002 (2013) ("[T]he absence of a formal written policy ... does not necessarily imply ... [a] widespread practice of either depriving these employees of meal and rest periods or requiring them to work during those periods."). Moreover, Brinker made clear that "[w]hat will suffice may vary from industry to industry," so different approaches to providing breaks may be appropriate in different circumstances. It would be inconsistent with its own precedent for the court to hold that a formal policy is required in every case.

Second, the 9th Circuit asks, "Does an employer's failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?" The idea of a rebuttable presumption with respect to meal breaks also comes from Brinker, but from the concurring opinion. Observing that employers are required by law to record meal breaks, Justice Kathryn Werdegar's concurrence in Brinker opined that "[i]f an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided." This concept gained steam when it was cited in Safeway, Inc. v. Superior Court, 238 Cal. App. 4th 1138 (2015) in affirming class certification of a meal break theory pursued under the Unfair Competition Law.

However, it is unlikely that the California Supreme Court will adopt such a presumption in Cole. Only one other justice joined Justice Werdegar's Brinker concurrence, suggesting that in 2012 at least, a 5-2 majority of the court agreed that no such presumption arises from time records alone.

This prediction is consistent with the Courts of Appeal. Granted, some courts have cited Justice Werdegar's presumption with approval. But only in the class certification context, and only as "further support" for certifying a class where there was already strong support for doing so. Safeway, 238 Cal. App. 4th at 1159; Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 951 (2016). Other courts have explained that "[d]uring the class certification process, the court is concerned with issues of commonality and whether the class is ascertainable; and in that context, an employer's time records may establish a rebuttable presumption," but "[t]he standard is different" when the court is "called on to decide the merits of the claims[.]" Donohue v. AMN Servs., LLC, 29 Cal. App. 5th 1068, 1088-89 (2018) (original emphasis); Silva v. See's Candy Shops, Inc., 7 Cal. App. 5th 235, 253-54 (2016) (rejecting the concept of a presumption and distinguishing Safeway because "we are reviewing a summary judgment and not a class certification"). At least one court has rejected the presumption altogether, because "a statement in a concurring opinion is not binding precedent." Torres v. Goodwill Indus. of S.D. Cnty., D072271 (Cal. Ct. App. July 18, 2018). No appellate court has applied a rebuttable presumption from time records to find liability for meal break violations.

If the California Supreme Court unexpectedly does find that there is a rebuttable presumption, that raises yet another question -- does the presumption arise where the time records show late or missed breaks, or only when the employer failed to keep records of meal breaks entirely? The answer would probably be the latter. Brinker held that employers must provide meal breaks but are "not obligated to police meal breaks" to ensure that they are taken. Presuming a violation where the employee may have chosen to skip or delay the break is inconsistent with that holding.

The 9th Circuit's inclusion of "rest breaks" in its certification is somewhat puzzling, because there does not appear to be any other case law considering a rebuttable presumption regarding rest break violations. Rest breaks are paid time, so they are generally taken on the clock. Unlike with meal breaks, nothing in the Labor Code or Wage Orders requires employers to record rest breaks, and few employers do record them. If the California Supreme Court were to hold that a failure to record rest breaks gives rise to a rebuttable presumption that they were not provided, it would upset the expectations of employers statewide with no warning. It is unlikely that the Court would take such an unprecedented position. 