Friday, April 20, 2012

Unpacking The Brinker Court’s Analysis Of Certification Issues Particular to Meal and Rest Period Claims: Brinker Restaurant Corp. v. Superior Court

As promised, this final post will examine the Brinker Court’s meal and rest break certification analysis (previous posts are located here and here).  As demonstrated below, the common thread running throughout the Court’s opinion centered largely on the Court of Appeal’s finding that individualized issues relating to waiver rendered certification of meal and rest period claims inappropriate.
With regard to rest periods, the Court’s analysis was fairly straight forward.  The Court held that because the plaintiffs’ theory of liability was predicated on breaks not being authorized or permitted in the first instance, reversal of the trial court’s certification order based on issues relating to class members having waived their breaks was an abuse of discretion:
In reversing class certification, the Court of Appeal concluded that because rest breaks can be waived—as all parties agree—“any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that Brinker violated” the Labor Code and Wage Order No. 5. This was error. An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable. No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it. As Hohnbaum pleaded and presented substantial evidence of a uniform rest break policy authorizing breaks only for each full four hours worked, the trial court’s certification of a rest break subclass should not have been disturbed.
Slip Opinion, at 25-26 (emphasis added).

Thus, the Brinker opinion confirms that the issue of waiver is irrelevant to theories of liability alleging that employees were deprived access to a legally compliant break in the first instance (this would seem to be a matter of common sense, as you cannot waive what you never had).

With regard to meal periods, the Brinker Court went one step further.  Although the Court rendered no formal opinion as to whether the trial court erred in certifying a class [id., at 51 (“we need not decide whether or not the trial court erred…. we consider it the prudent course to remand the question of meal subclass certification to the trial court for reconsideration in light of the clarification of the law we have provided.”)], Justice Werdegar’s concurring opinion makes clear that the Court did not accept the premise that individualized issues relating to waiver render a claim uncertifiable, per se:
In returning the case for reconsideration, the opinion of the court does not endorse Brinker’s argument, accepted by the Court of Appeal, that the question why a meal period was missed renders meal period claims categorically uncertifiable. Nor could it, for such a per se bar would be inconsistent with the law governing reporting obligations and our historic endorsement of a variety of methods that render collective actions judicially manageable.
Concurring Opinion (Werdegar, J.), at 1 (emphasis in original).

Here, significant emphasis was placed on the employer’s obligation to record meal breaks relative to an employer asserting the defense of waiver.  Specifically, Justice Werdegar highlighted that when an employer fails to record a meal break, a “presumption arises that the employee was not relieved of duty and no meal period was provided” [id., at 1], and thereafter, “[a]n employer’s assertion that it did relieve the employee of duty, but the employee waived the opportunity to have a work-free break, … is an affirmative defense, and thus the burden is on the employer, as the party asserting waiver, to plead and prove it.”  See id., at 2.

This statement of presumption and burden is material to certification, as it precludes the automatic categorization of all missed meal periods as implicating an individualized issue of waiver.  To establish the presence of individualized issues, an employer seemingly must now affirmatively introduce evidence for each individual employee to place the presumption in dispute as to that employee.  In turn, this forecloses a court from making a generalized, freewheeling assumption from a handful of employee declarations that individualized issues relating to waiver will predominate as to the entire class.  Such an interpretation is consistent with Justice Werdegar’s discussion, which noted that the employer cannot be permitted to reap a reward for failing to record breaks.  See id., at 2 fn. 1 (“[t]o place the burden elsewhere would offer an employer an incentive to avoid its recording duty and a potential windfall from the failure to record meal periods.”).

In addition – as discussed in the final paragraph of my previous post – an employer’s invocation of a generalized waiver defense in the break context is properly construed as a damages issue.  See Concurring Opinion (Werdegar, J.), at 3 (“For purposes of class action manageability, a defense that hinges liability vel non on consideration of numerous intricately detailed factual questions, … is different from a defense that raises only one or a few questions and that operates not to extinguish the defendant’s liability but only to diminish the amount of a given plaintiff’s recovery.”) (emphasis added).

Finally, it is important to highlight that the elements of waiver – which requires an employer evidence that the right to breaks was both known and voluntarily released [Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 31 (1995) (“waiver is the intentional relinquishment of a known right after knowledge of the facts”)] – in many cases may lend themselves to issues that are common to the class.  By way of example, an employer that fails to communicate any break policies to its employees will necessarily be legally foreclosed from subsequently seeking to invoke a waiver defense.  See e.g. Concurring Opinion, at 2 fn. 1 (“the burden is on the employer to show that the agricultural employee had been advised of his or her legal right to take a meal period and has knowingly and voluntarily decided not to take the meal period.”); See also Bufil v. Dollar Financial Corp., 162 Cal. App. 4th 1193, 1199 (2008) (“Dollar does not notify its employees that they are authorized and permitted to take a 10-consecutive-minute off-duty rest break …. The onus is on the employer to clearly communicate the authorization and permission to its employees.”).

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