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Class Litigation of Meal and Rest Period Claims
In Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781, 800 (2008), review granted and opinion superseded in 85 Cal. Rptr. 3d 688 (Oct. 22, 2008), California's Fourth District Court of Appeal substantively altered the wage and hour landscape through its conclusion that California meal and rest period regulations only impose a passive obligation on employers to make breaks available. This legal finding, according to the Brinker court, renders meal and rest period claims hopelessly uncertifiable as a class action, as the employee's option to waive a meal or rest period requires a case-by-case inquiry into the reason each individual break was not taken. While the Brinker decision is currently pending review by the California Supreme Court, Brinker's analysis is not the be-all end-all when it comes to class adjudication of meal and rest period claims. Regardless of the outcome in Brinker, numerous meal and rest break theories will continue to be suitable for class adjudication.
Claims Involving Uniform Barriers to Breaks
Perhaps one of the most effective theories permitting class adjudication of meal and rest period claims involves an employer's imposition of a common policy and/or practice that uniformly prevents employees from accessing meal and rest periods. Such violations predicated upon a common barrier are antithetical of Brinker, as such violations involve: 1) a common policy ideal for classwide adjudication; 2) a lack of employee choice that effectively negates the “individualized” waiver defense; and 3) the potential for employer liability, notwithstanding the existence of a facially lawful meal and/or rest period policy. See e.g., Bufil v. Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1206 (2008) (“no one disputes that the wage order was posted or that there were designated areas to take a break ' these matter naught if a single-shift sole employee or sole employee working with a trainee is not able to take an off-duty break.”).
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