Litigating California Wage & Hour and Labor Code Class Actions

permitted” the employee to work through the missed meal break, which could plausibly
exonerate the employer. 133 On the other hand, “relieving of duty” could mean actually
forcing the employee not to do any work. Unfortunately, Cicairos did not clarify this
confusion and the facts of the case did not involve a situation where the employees were
given a genuine opportunity to take a meal break but voluntarily declined to do so. Rather,
the employees argued that they were not informed they were permitted to take meal breaks
and, moreover, they had no way to record time as a break on the timekeeping system.
Employers breathed a sigh of relief when, in July 2008, the Fourth District Court of Appeal
issued its decision in Brinker Restaurant Corporation v. Superior Court, 134 which concerned
a putative class of hourly restaurant employees who contended they had not been provided
with meal and rest periods. 135 The plaintiffs claimed that employers were required to ensure
that employees took their meal breaks, to provide meal breaks as close as possible to the
middle of each shift, and to provide a meal break for each five-hour block of time on a
“rolling” basis. The trial court had certified a class on these claims, without first deciding
any relevant legal issue, such as whether employers were required to mandate meal
breaks. Instead, the trial court stated that this was a common legal issue to be decided on
a classwide basis following certification.
The court of appeal reversed the trial court, holding that it was an abuse of discretion for
the trial court to fail to determine the legal elements of the plaintiffs’ claims in ruling on class
certification. The court held that employers need only make meal periods available to
employees, which rendered the plaintiffs’ claims unsuitable for class adjudication because it
would be necessary to determine on a case-by-case basis whether each employee was
actually denied meal breaks (company policy clearly provided for meal periods). 136 The
court of appeal also distinguished Cicairos, essentially limiting that case to its peculiar
facts.
Fresh on the heels of the Brinker decision, employers seemed to score another victory
when the Second District Court of Appeal issued its decision in Brinkley v. Public Storage,
133
134
135
136
Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414-14 (9th Cir. 1981) (“where the acts of an employee prevent
an employer from acquiring knowledge, here of alleged uncompensated overtime hours, the employer cannot be said to
have suffered or permitted the employee to work”).
Previously published at 165 Cal. App. 4th 25 (2008).
The complaint also alleged a claim for working “off the clock.”
The court also determined that: (1) employers are not required to provide a meal period during every block of five
consecutive hours worked, and therefore the defendant’s policy of sometimes providing meal periods early in
employees’ shifts was not improper; (2) employers need only provide rest breaks, not mandate them; (3) employers are
only required to provide one rest period per four hours worked or “major fraction thereof,” with the “major fraction
thereof” meaning between three and one-half to four hours; (4) rest breaks are not required to be in the middle of each
four-hour work period where that would be impracticable; and (5) employers may be liable for employees working “off
the clock” only where the employer knew or should have known about such work being performed.
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 35