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Meal period subclass certified in California’s landmark Brinker case

By Lisa Milam-Perez, J.D.

On remand from the California Supreme Court, a superior court judge  certified a meal period subclass in a long-running class action wage suit against Brinker Restaurant Corp (Hohnbaum v Brinker Restaurant Corp, September 26, 2013, Dato, W). The judge also refused Brinker’s motion to decertify a rest break subclass in the ongoing action.

Previously, the court had certified a class of 59,000 restaurant employees who alleged they were denied meal and rest breaks and had been forced to work off the clock. In a big win for employers, an appeals court reversed, resulting in a circuit split and an eventual California Supreme Court showdown.

The Supreme Court’s decision was eagerly awaited because it promised to resolve a vexing wage-hour issue that had divided the lower courts: whether, under the California Labor Code, it was enough to offer hourly employees the chance to take their statutorily mandated meal periods, or whether employers had to ensure their employees were actually taking their meal periods. This disputed point of law had clear implications for class certification: the employer had argued that if meal and rest breaks need only be made available to employees and the actual taking of breaks not enforced, there could be myriad reasons why employees did not take their breaks — reasons that could only be decided based on individualized inquiries on a case-by-case basis — so claims over missed meal and rest periods thus were not amenable to class treatment.

In its 2012 decision, the state high court affirmed certification of a rest break subclass of restaurant employees (reversing the intermediate court), rejected an off-the-clock work subclass, and remanded as to the meal period subclass. Importantly, the court also held that providing the opportunity for break periods was sufficient. However, Justice Werdegar, who authored the opinion, wrote separately to expressly emphasize that in returning the case for reconsideration, the high court did not endorse the notion that “the question why a meal period was missed renders meal period claims categorically uncertifiable.” The court merely instructed the court below to reconsider. Having done so, the court certified the meal period subclass anew, concluding the plaintiffs’ claims that they were denied mandated meal periods were subject to common proof.

Also, finding that Brinker made no showing of changed circumstances, the court declined to decertify a class that had been given the nod of approval from above. “A trial court would tread cautiously before undoing what the Supreme Court has approved based on similar evidence and repackaged arguments,” it noted.