Litigating California Wage & Hour and Labor Code Class Actions

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Inc. 137 In Brinkley, the plaintiff brought claims on behalf of a putative class of property managers, alleging, among other things, 138 that Public Storage violated Labor Code Section 226.7 by failing to provide meal periods within the first five hours of each shift, and by failing to ensure that its employees actually took meal breaks. The trial court granted summary adjudication as to the meal period claim, and the plaintiff appealed. The appellate court upheld the trial court’s grant of summary adjudication. As to the meal period claim, the court held that employers need only provide employees with an opportunity to take meal breaks; they are not obligated to mandate such breaks. The court distinguished Cicairos by noting that the employer in that case “managed and scheduled the [employees] in such a way that prevented [them] from taking their meal periods,” which amounted to an active denial of the employees’ right to such breaks. The court also held that employers need not provide meal periods within the first five hours of work, but rather after five hours. 139 These victories were short-lived, as the California Supreme Court granted review of both Brinker and Brinkley in 2008. For nearly four years thereafter, the law was unsettled as the Supreme Court wrestled with these two cases. Rather than wait for those decisions, the California Court of Appeal decided to tell employers its view of the applicable legal standard. In October 2010, the court affirmed the trial court’s decision in Hernandez v. Chipotle Mexican Grill, Inc. and held that Labor Code § 226.7(a) states that employers must make meal and rest periods available, not ensure that they are taken. 140 The court stressed that “provide” means “to supply or make available” and that enforcement of meal breaks would place undue burden on large employers and create perverse incentives for employees to receive extra compensation under the wage & hour laws. 141 The court also distinguished Cicairos, on the ground that there the employer effectively precluded its employees from taking their meal and rest periods. 142 However, the California Supreme Court also granted review in Hernandez pending its decision in Brinker, making Hernandez unciteable. 143 However, at least seven 137 138 139 140 141 142 143 Previously published at 167 Cal. App. 4th 1278 (2008). The plaintiff also brought claims for pay stub and rest period violations. The court of appeal also affirmed summary adjudication as to the itemized wage statement and rest break claims, but those portions of the decision were vacated upon the grant of review. Hernandez v. Chipotle Mexican Grill, Inc., 118 Cal. Rptr. 3d 110 (2010), review granted; see also In re Lamps Plus Overtime Cases, 125 Cal Rptr. 3d 590 (2011), rev. granted (holding employers need not ensure meal periods be taken). Id. at 118-119. Id, at 119. The Court of Appeal reached the same conclusion in Tien v. Tenet Healthcare, 121 Cal. Rptr. 3d 773, 783-84 (2011), review granted. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 36
federal decisions also held that an employer’s duty to “provide” a meal period is to make it available and that meal period claims based on a mere failure to ensure employees took meal periods are unsuitable for class certification. 144 Finally, on April 12, 2012, the Supreme Court issued its decision in Brinker. 145 The opinion was mostly favorable to employers, holding—as expected—that employees need not be forcibly prevented from working through their lunch breaks in order to be properly “provided” with a meal period. The Court stated that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” 146 “Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.” 147 Furthermore, if an employee who is properly relieved of all duty decides to continue working anyway, the employer will not be liable for payment of one hour of penalty pay, and will be liable to pay straight-time pay only if it “knew or reasonably should have known that the worker was working through the authorized meal period.” 148 The Court did find, however, that employers must provide meal periods “after no more than five hours of work, and a second meal period after no more than 10 hours of work.” 149 This would mean that, for example, an employee who starts work at 9 a.m. would need to be provided a lunch break beginning by no later than 2 p.m., or else the employer would be liable for one hour of premium wages. However, it would also seem that the employee could voluntarily decide to take meal breaks later on in the work day, as long as they were made available in a timely manner. The Court rejected the plaintiffs’ contention that a meal 144 145 146 147 148 149 See White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007) (cited in Brinker; first published decision to hold “provide” means “make available.”); Brown v. Federal Express Corp., 249 F.R.D. 580, 585-86 (C.D. Cal. 2008) (“Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who . . .do not appear to remain in contact with the employer during the day.”); Kenny v. Supercuts, Inc., 252 F.R.D. 641, 645-46 (N.D. Cal. Jun. 2, 2008) (“[The Labor Code] does not require an employer to ensure that an employee take a meal break.”); Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529, 533 (S.D. Cal. 2008) (“The Court agrees with the compelling reasons advanced by the White, Brown, and Kenny decisions for interpreting ‘provide’ to mean ‘make available’ rather than ‘ensure taken.’”); Kohler v. Hyatt Corp., 2008 U.S. Dist. LEXIS 63392, at *18 (C.D. Cal. Jul 23, 2008) (“An employee must show that he was forced to forego his meal breaks, as opposed to merely showing that he did not take them regardless of the reason.”); Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal., Nov. 28, 2011) (noting that employers only need to make meal periods available to employees and that posting a copy of the Wage Order was sufficient to advise employees of that right). 2012 WL 1216356 (Cal.) Id. at *14. Id. at *17; citing Morillion v. Royal Packing Co., 22 Cal 4th 575, 584-585 (2000). Id. at *18 n 19; Quoting DLSE Opinion Letter No. 1991.06.03. Id. at *24. Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 37
Page 1 and 2: Litigating California Wage & Hour a
Page 3 and 4: Table of Contents I. Introduction a
Page 5 and 6: A. Disclosure of Class Member Names
Page 7 and 8: associated statutory penalties. 1 T
Page 9 and 10: who does not meet the threshold com
Page 11 and 12: exempt work is of a kind which in e
Page 13 and 14: 3) The employee performs his or her
Page 15 and 16: decisions have concluded that under
Page 17 and 18: Bell court to look beyond the Wage
Page 19 and 20: place of business, would that quali
Page 21 and 22: IWC had the authority to promulgate
Page 23 and 24: stores” by providing them a porti
Page 25 and 26: declare such a system illegal witho
Page 27 and 28: employers should be able to defend
Page 29 and 30: waive the right to reimbursement, s
Page 31 and 32: Due to the ambiguity in the meaning
Page 33 and 34: For each workday the employer fails
Page 35 and 36: Arguably, no additional $100-per-pa
Page 37: permitted” the employee to work t
Page 41 and 42: for all overtime hours worked. The
Page 43 and 44: much broader, such as the court’s
Page 45 and 46: In the appeal of Chau, the appellat
Page 47 and 48: years before the lawsuit, or for an
Page 49 and 50: imposition of penalties, 194 routin
Page 51 and 52: In one such class action, Elliot v.
Page 53 and 54: First, there has been a substantial
Page 55 and 56: Recent court decisions have begun t
Page 57 and 58: of her hours was paid at a rate of
Page 59 and 60: the limitations period for a penalt
Page 61 and 62: passage, then the employee could st
Page 63 and 64: all, but rather simply to proceed w
Page 65 and 66: Shortly thereafter, another Divisio
Page 67 and 68: and the ability to bring a collecti
Page 69 and 70: XIII. Class Action Fairness Act of
Page 71 and 72: the plaintiff is “master of her c
Page 73 and 74: alleged conduct or any related cond
Page 75 and 76: Initially, the decisions were split
Page 77 and 78: XIV. Class Certification A. General
Page 79 and 80: expectations and the realistic requ
Page 81 and 82: In the immediate wake of Sav-On, th
Page 83 and 84: Similarly, employers may argue that
Page 85 and 86: A 5 to 4 ruling reversed the Ninth
Page 87 and 88: facility to the next, or variations
Page 89 and 90:
employer’s defense arsenal, and t
Page 91 and 92:
In reaching this conclusion, the Co
Page 93 and 94:
party who seeks the same relief, pr
Page 95 and 96:
is to be so maintained.” This det
Page 97 and 98:
speech. 429 Therefore, the court he
Page 99 and 100:
Puerto, or Crab Addison cases would
Page 101 and 102:
epresentative. That question was an
Page 103 and 104:
CashCall to disclose the identities
Page 105 and 106:
nothing but still are bound by the
Page 107 and 108:
Initially, there appeared to be a v
Page 109 and 110:
the case. As any one of these class
Page 111 and 112:
have any great impact on class sett
Page 113 and 114:
plaintiff’s attorney and putative
Page 115 and 116:
the California Supreme Court issued
Page 117 and 118:
While California courts have essent
Page 119 and 120:
The plaintiffs attempted to justify
Page 121:
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