Two recent appellate court decisions demonstrate, once again, that courts in the Post-Brinker era are less inclined to grant class certification in actions alleging rest period or meal break violations.
In re Walgreen Company Overtime Cases, the plaintiffs alleged that the drug store chain had departed from its formal (and otherwise compliant) policies regarding meal breaks and rest periods in an illegal and widespread way. The decision did not go into the specifics of the alleged improper practices, but the general allegation appeared to be that it was common practice to under staff stores, forcing employees to work through their meal periods.
The decision has a good discussion about the impact of the California Supreme Court’s 2012 Brinker decision and the difference between having to ensure breaks are taken versus making sure breaks are made available. The “ensure” standard is more stringent on employers because it places the responsibility on the employer to make sure employees actually take breaks. The “make available” standard is less so because it leaves it up to the employee to actually take the break. As we know, the Brinker court ultimately adopted the more lenient “make available” standard.
Subsequently, plaintiffs seeking class certification in meal-break actions are finding it more difficult to meet the required burden. This is because the “ensure” standard makes it easier to show common issues predominate if payroll records show breaks were not being taken. In contrast, the “make available” inquiry is more fact intensive (assuming an otherwise valid policy is in place) since it requires looking into why employees are skipping their breaks, which can obviously vary on a case by case basis – not good for plaintiffs seeking class action certification.
The lack of specific practices described in the Walgreen decision is likely due to when the case was filed – pre-Brinker. The plaintiffs in Walgreen had originally put forth expert testimony regarding statistical evidence of how often employees missed their breaks. However, post-Brinker, such information does not indicate why the employees missed those breaks. Thus, the trial court reasonably disregarded such evidence. Similarly, the trial court reasonably found that corporate emails to store managers, which raised concerns that employees were not taking breaks, tended to prove that the company was pressuring employees to take breaks, not skip them. Finally, form declarations from employees, who later recanted facts contained in those same declarations at deposition –some even admitted they didn’t read the declarations before signing, did not help the plaintiffs’ efforts. In short, the plaintiffs’ case was originally brought when the “ensure” standard was still a possibility. Post-Brinker, it was an easy decision for the Court of Appeal to affirm the trial court’s denial of class certification.
A few months later, the Court of Appeal reached a similar result where there was more troubling evidence of whether there were actually uniform policies in place that did not sufficiently relinquish control over employees on break. In Koval v. Pacific Bell, the plaintiff field technicians sought class action certification on the grounds that various regional field operation policies of Pac Bell prevented them from fully exercising their breaks. These included prohibitions on “ganging up” with colleagues on break, leaving their trucks, riding in other vehicles or driving outside normal work routes to get a meal. Pac Bell’s formal meal and rest break period policy was facially compliant. The field operation policies were conveyed to employees verbally, if at all, by their individual supervisors.
In opposition to certification, Pac Bell asserted there were no uniform rules actually conveyed to or applied against employees which restricted employee meal-time activities. The employer argued that individual inquiries would be needed to determine what oral instructions were given by which supervisors. That liability, if any, “could flow only from a supervisor’s misinterpretation of written rules or exercise of discretion.”
The trial court concluded that the provided evidence demonstrated that the policies had not been consistently applied and therefore denied certification. The Court of Appeal affirmed the denial, and emphasized that the mere existence of an apparent uniform policy does not necessarily mandate certification. Under the facts presented, the policies were actually far from uniform.
It’s important to note that Koval was not a case of common issues on liability, but individualized issues on damages. Courts routinely grant class certification in such circumstances – questions on individual defenses or damages will not prevent certification. Instead, the combination of various rules that were transmitted and applied in different combinations at different times created a “shifting kaleidoscope of liability determinations,” making the case improper for class action treatment and “totally unmanageable.” In other words, individual issues predominated over common issues, even within the purported common theme for liability.
Takeaway: If there is an improper uniform policy being consistently applied restricting meal-breaks, class certification is all but certain. However, if individual questions of fact are involved regarding what actually constitutes the uniform policy across various supervisors or locations, class certification is less certain. As always, the best practice is to continually ensure that meal and rest period policies are compliant and being followed – and always make sure accurate records are being maintained.
Carmel & Naccasha frequently provides advice on issues relating to employment law. Brian Stack is an attorney at Carmel & Naccasha LLP whose practice focuses primarily on civil litigation, including business litigation, employment law, real estate and tort liability, as well as business transactions and corporate law. Brian can be reached through his biography page or at 805-546-8785.