Thursday, December 13, 2012

Fourth District Concludes Brinker Compels Certification of Meal/Rest Break Claims Predicated Upon Employer’s Complete Lack of Break Policy: Bradley v. Networkers International, LLC

On December 12, 2012, the Fourth District (Division 1) reversed its prior unpublished opinion in Bradley v. Networkers International, LLC (2009 Cal. App. Unpub. LEXIS 963), which had affirmed the trial court’s denial of certification of overtime and meal/ rest break claims on behalf of a proposed class of telecommunications installers classified as independent contractors.  The case was among the bevy of “grant-and-hold” appellate decisions which review was granted by the California Supreme Court pending resolution of Brinker.  The Court’s subsequent Opinion – Bradley v. Networkers International, LLC, __ Cal.App.4th __ (2012) – contains significant analysis favorable to the plaintiff’s perspective on several issues, including the two issues discussed below.

First, the Court acknowledged that it had improperly incorporated issues pertaining to “whether” and “why” individual employees may have missed breaks (a purely damages question) into its predominance analysis, rather than focusing on whether the plaintiff’s theory of liability was amenable to common adjudication.  See Slip Opinion, at 18-19 (“In analyzing the rest break claims, the Brinker court also expressly rejected this court's reasoning that evidence showing some employees took rest breaks and other employees were offered rest breaks but declined to take them made class certification inappropriate.”).  As explained by the Court, “Brinker instructs that in ruling on the predominance issue in a certification motion, the court must focus on the plaintiff's theory of recovery and assess the nature of the legal and factual disputes likely to be presented and determine whether individual or common issues predominate.”  See Slip Opinion, at 30 (citing Brinker, 53 Cal.4th at p. 1025.).  Citing to the Second District’s analysis in Jaimez v. Daiohs USA, Inc., 181 Cal.App.4th 1286 (2010), the Court concluded that it was error to deny certification of a theory challenging a uniform company policy/practice based on employee declarations submitted by the employer attesting that breaks were received:
Reversing the trial court's order, the Jaimez court found the trial court "misapplied" the law regarding class certification by "focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating 'whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.' " (Jaimez, supra, 181 Cal.App.4th at p. 1299.) The court stated that "had the trial court focused on the correct criteria, it would have necessarily found the [defendant's] declarations, while identifying individual effects of policies and practices that may well call for individual damages determinations, nevertheless confirm the predominance of common legal and factual issues that make the case more amenable to class treatment." (Id. at p. 1300.) The court further held "[t]he fact that individual [workers] may have different damages does not require denial of the class certification motion." (Id. at p. 1301.)
As in Jaimez, there were common factual and legal issues in this case regarding whether the employees were permitted to take meal and rest breaks and whether they were compensated for missed meal and rest breaks. The evidence also showed that the nature of Networkers' scheduling and work requirements made it difficult for employees to take required rest and meal breaks.  Focusing on the employees' allegations that the employer's companywide employment practices violated state law, the Jaimez court found the fact that the evidence may disclose that not all employees missed a meal or rest break does not mean that individual issues would predominate on the liability issues. (Jaimez, supra, 181 Cal.App.4th at pp. 1300-1301.) Applying the principles set forth in Brinker, we reach the same conclusion in this case.
Slip Opinion, at 32-33.

Second, the Court also acknowledged error in finding that a theory alleging an employer failed to maintain any meal and/or rest break policy was uncertifiable due to individualized issues of waiver.  As explained by the Court, Brinker made clear that an employer is legally foreclosed from asserting the defense of waiver unless and until it establishes that it complied with its minimal obligation to communicate its authorization for breaks to employees.  See Slip Opinion, at 30.  Based thereon, a theory alleging that the employer failed to meet its threshold obligation in the first instance necessarily presented a uniform issue suitable for class treatment even if some employees claimed that they always received their breaks:
On plaintiffs' class certification motion, it was undisputed that: (1) Networkers did not have a policy permitting or authorizing meal or rest breaks for the proposed class members; (2) Networkers did not know whether these workers took the required breaks; and (3) Networkers did not maintain any records reflecting when (or if) the workers took meal or rest breaks. The evidence also showed that after Networkers formally converted these workers to "employee" status, it did not implement any rest or meal break policy, or give any notification to the workers about their entitlement to take meal or rest breaks.
Under Brinker, plaintiffs' legal challenge to these uniform practices involve common factual and legal issues that are amenable to class treatment. "An employer is required to authorize and permit the amount of [rest and meal] break time[s] called for under the wage order for its industry. If it does not . . . it has violated the wage order and is liable." (Brinker, supra, 53 Cal.4th at p. 1033.) Claims alleging a "uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment." (Ibid.)
Networkers argues, and we agreed in our initial opinion, that the issue of which employees had missed breaks and how many breaks were missed and whether those missed breaks were the result of Networkers' lack of a break policy was highly dependent on the testimony of each plaintiff, essentially requiring a mini-trial on each class member's case to determine the eligibility for recovery and the amount of damages to which each plaintiff would be entitled.
However, this argument conflicts with Brinker's clear holdings that for meal breaks, an employer has an obligation to relieve its employee of all duty, permit the employee to take an uninterrupted 30-minute break, and to not impede or discourage the employee from doing so. (Brinker, supra, 53 Cal.4th at p. 1040.) Similarly, an employer has an obligation to provide a rest break, and if the employer fails to do so, the employer cannot claim the employee waived the break. (Id. at p. 1033.) Under the logic of these holdings, when an employer has not authorized and not provided legally-required meal and/or rest breaks, the employer has violated the law and the fact that an employee may have actually taken a break or was able to eat food during the work day does not show that individual issues will predominate in the litigation.
Slip Opinion, at 28 and 30-31.

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