Class Litigation of Meal and Rest Period Claims

Contrary to the holding in Brinker, an employer that erects barriers to an employee's access to breaks is foreclosed from resting on the general proposition that an employer cannot be saddled with an affirmative obligation to ensure that workers are actually relieved of all duty. In such circumstances, the employer is required to “take steps to provide employees with the opportunity to take the required [] breaks” affirmatively and “[t]he onus is on the employer to clearly communicate the authorization and permission to its employees.” See Bufil, 162 Cal. App. 4th at 1200. An employer will be liable where it “simply assumed breaks were taken, despite its institution of policies that prevented employees from taking ' breaks.” See Brown v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 17125, 17-18 (C.D. Cal. 2008).

Significantly, federal district court opinions employing Brinker's analysis have uniformly concluded that an employer will necessarily violate the applicable Wage Orders by constructing impediments to taking “off-duty” meal periods. See, e.g., Perez v. Safety-Kleen Sys., 253 F.R.D. 508, 514 (N.D. Cal. 2008) (“The conclusion that an employer may not discourage meal breaks is also consistent with three other recent cases in which district courts have interpreted an employer's obligation under Section 512.”); Brown, 2008 U.S. Dist. LEXIS 17125, 17-18 (reasoning that while an employer is not obligated “to force employees to take breaks[,]” an employer may be liable where “ an employer simply assumed breaks were taken, despite its institution of policies that prevented employees from taking meal breaks.”); White v. Starbucks Corp, 497 F. Supp. 2d 1080, 1089 (N.D. Cal. 2007) (reasoning that “Cicairos should be read under the facts presented by that case” wherein the employer was found liable when the employer “knew that employees were driving while eating and did not take steps to address the situation” and imposed “management policies, effectively deprived the drivers of their breaks.”); Kenny v. Supercuts, Inc., 252 F.R.D. 641 (N.D. Cal. 2008) (reasoning that “the 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.”); Marlo v. UPS, 2009 U.S. Dist. LEXIS 41948 (C.D. Cal. May 5, 2009) (“To the extent Marlo argues that the opportunity to take a meal break must be a meaningful one for it to count as a meal break 'provided' by the employer, the Court agrees ' .”).

Thus, where an employer employs uniform policies that commonly impede employees' access to “off-duty” breaks, such policies present common issues that may be litigated as to the class as a whole.

Claims Involving the 'On-Duty' Meal Break Exemption

Claims that are predicated upon an improper use of the “on-duty” exemption also provide another ground amenable to class adjudication. An “on-duty” meal break ' which is a codified exception to the requirement that “off-duty” breaks be given ' is an affirmative defense that may be utilized only if three elements are established by the employer. See, e.g., 8 CCR 11040(11)(A) (“[a]n 'on duty' meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”); McFarland v. Guardsmark, LLC, 538 F. Supp. 2d 1209, 1217 n.3 (N.D. Cal., 2008). Whether an employer has satisfied each of these elements may generally be adjudicated on a classwide basis.

Under the first element of the defense, an employer is entitled to offer an on-duty meal break to employees only if “the nature of the work prevents an employee from being relieved of all duty ' .” See, e.g., 8 CCR 11040(11)(A). “The test of whether the nature of the work prevents an employee from being 'relieved of all duty' is an objective one” [DLSE Enforcement Manual, at ' 45.2.3.1], and is focused on the employer's business “overall.” See West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 42074, 14 (E.D. Cal., 2006) (rejecting an employer's argument that “the nature of the work exception applies on a case-by-case, shift-by-shift basis[,]” as “ the exception was more likely provided to allow employers some relief when the nature of the work in their business overall does not permit a mid-shift meal break.”). As the nature of the work element is one that applies to all employees equally, courts have concluded that this issue is one that may, and properly should, be adjudicated on a class-wide basis. See, e.g., Bufil, 162 Cal. App. 4th at 1203-1204 (concluding that the issue of whether an employer's practice of scheduling a single employee to work alone was sufficient to satisfy the “nature of the work” element was “a legal question concerning the liability of Dollar to each putative class member.”); West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 42074, at 14.

Under the second and third elements of the defense, an employer may be held liable if it utilizes the on-duty exemption without first securing a written agreement from employees, or if the written agreement fails to state expressly that the employee may revoke the agreement at any time. See e.g., 8 CCR 11040(11)(A); McFarland, 538 F. Supp. 2d at 1217, n.3. As an employer's act of obtaining (or failing to obtain) the requisite written consent will generally be a standardized practice common among all employees, both of these elements are susceptible to class adjudication.

Importantly, while the on-duty exemption “applies only to meal periods, not to rest breaks” (Bufil, 162 Cal. App. 4th at 1205), employers who seek to defend a meal break action by such means may be unwittingly setting up an argument for class adjudication of rest period claims under barrier theory. Indeed, an employer who advocates that it was entitled to invoke the on-duty meal break exemption based on the inherent nature of its work by necessity must make an admission that common impediments existed that precluded free access to all breaks ' including rest periods. An employer cannot have it both ways. An employer that utilizes the on-duty meal break exemption to overcome inherent impediments will be liable if no action is taken to provide employees some means to access off-duty rest periods. Under most circumstances, the employer's effort to avail itself of the “on-duty” exemption all but ensures that rest break claims will be amenable to class adjudication as well.

Claims Based on Facially Unlawful Break Policies

Courts have also continued to certify classes based on meal and/or rest period policies alleged to facially violate meal and rest period requirements set forth in the Wage Orders. See, e.g., Bibo v. Fed. Express, Inc., 2009 U.S. Dist. LEXIS 37597, 30 (N.D. Cal., Apr. 21, 2009) (“Plaintiffs have identified the relevant policies and the law with which they argue the policies are inconsistent, and as such offer a common question of law and fact that predominates over individual inquiries.”). In Bibo, the court certified meal period subclasses based on policies which violated provisions requiring that: 1) a meal period be uninterrupted; and 2) breaks be provided after the fifth hour of work. See Bibo, 2009 U.S. Dist. LEXIS 37597, at 27-35.

Claims Based on Waiver By Collective Bargaining Agreement

In addition to the forgoing, class-wide claims may also be predicated upon a uniform waiver of meal and rest periods by way of a collective bargaining agreement. Meal and rest periods are not exempted under Labor Code ' 514, and as such, cannot be subject to waiver by a collective bargaining agreement as a matter of law. See Zavala v. Scott Brothers Dairy, Inc., 143 Cal. App. 4th 585, 593 (2006); Valles v. Ivy Hill Corp., 410 F.3d 1071, 1081-82 (9th Cir., 2005) (holding that “any provision of the collective bargaining agreement purporting to waive the right to meal periods would be of no force or effect: The right in question is plainly nonnegotiable.”); Tormey v. Vons Cos., Inc., 2007 U.S. Dist. LEXIS 66010 (S.D. Cal. Sept. 5, 2007). Based on such authority, an employer's effort to secure a universal waiver by such means presents a common issue ideal for class adjudication.

Claims Based on Misclassification of Exempt Status

Finally, classwide claims may also be predicated upon a challenge of an employer's policy of improperly classifying employees as exempt. As a general rule, meal and rest period requirements do not apply to exempt employees under the Wage Orders. See, e.g., 8 CCR 11040(1)(A) (“Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities.”); Wiegele v. FedEx Ground Package Sys., 2008 U.S. Dist. LEXIS 10246, 6 (S.D. Cal. Feb. 12, 2008) ( holding that “[a]n employee classified as 'exempt' ' is not covered by California's overtime and meal and rest period laws” and “[i]f a classification is challenged, the employer must demonstrate that its 'exempt' classification is proper.”). Thus, where an employer maintains that it was not required to provide breaks based on a policy of categorically classifying certain groups of employees as exempt, that policy may, in some cases, be adjudicated on a class-wide basis. See, e.g., Wiegele, 2008 U.S. Dist. LEXIS 10246 (granting certification of manager class alleging, among other things, the failure to provide meal and rest periods based on employer's improper exempt classification).

Conclusion

In sum, the Brinker line of cases falls far short of a fait accompli in terms of a categorical bar to class adjudication of meal and rest period claims. In a post-Brinker world, just as before, standardized policies and practices that categorically impede employee access to meal and rest periods continue to present the paradigm theory for class adjudication of a meal and/or rest period claim.

Matt C. Bailey is a senior associate with Los Angeles-based Khorrami Pollard & Abir LLP and serves as co-chair of the firm's Class Action Practice Group. He may be reached at [email protected].

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.”).

Contrary to the holding in Brinker, an employer that erects barriers to an employee's access to breaks is foreclosed from resting on the general proposition that an employer cannot be saddled with an affirmative obligation to ensure that workers are actually relieved of all duty. In such circumstances, the employer is required to “take steps to provide employees with the opportunity to take the required [] breaks” affirmatively and “[t]he onus is on the employer to clearly communicate the authorization and permission to its employees.” See Bufil, 162 Cal. App. 4th at 1200. An employer will be liable where it “simply assumed breaks were taken, despite its institution of policies that prevented employees from taking ' breaks.” See Brown v. Fed. Express Corp., 2008 U.S. Dist. LEXIS 17125, 17-18 (C.D. Cal. 2008).

Significantly, federal district court opinions employing Brinker's analysis have uniformly concluded that an employer will necessarily violate the applicable Wage Orders by constructing impediments to taking “off-duty” meal periods. See, e.g., Perez v. Safety-Kleen Sys. , 253 F.R.D. 508, 514 (N.D. Cal. 2008) (“The conclusion that an employer may not discourage meal breaks is also consistent with three other recent cases in which district courts have interpreted an employer's obligation under Section 512.”); Brown, 2008 U.S. Dist. LEXIS 17125, 17-18 (reasoning that while an employer is not obligated “to force employees to take breaks[,]” an employer may be liable where “ an employer simply assumed breaks were taken, despite its institution of policies that prevented employees from taking meal breaks.”); White v. Starbucks Corp , 497 F. Supp. 2d 1080, 1089 (N.D. Cal. 2007) (reasoning that “ Cicairos should be read under the facts presented by that case” wherein the employer was found liable when the employer “knew that employees were driving while eating and did not take steps to address the situation” and imposed “management policies, effectively deprived the drivers of their breaks.”); Kenny v. Supercuts, Inc. , 252 F.R.D. 641 (N.D. Cal. 2008) (reasoning that “the 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.”); Marlo v. UPS, 2009 U.S. Dist. LEXIS 41948 (C.D. Cal. May 5, 2009) (“To the extent Marlo argues that the opportunity to take a meal break must be a meaningful one for it to count as a meal break 'provided' by the employer, the Court agrees ' .”).

Thus, where an employer employs uniform policies that commonly impede employees' access to “off-duty” breaks, such policies present common issues that may be litigated as to the class as a whole.

Claims Involving the 'On-Duty' Meal Break Exemption

Claims that are predicated upon an improper use of the “on-duty” exemption also provide another ground amenable to class adjudication. An “on-duty” meal break ' which is a codified exception to the requirement that “off-duty” breaks be given ' is an affirmative defense that may be utilized only if three elements are established by the employer. See, e.g., 8 CCR 11040(11)(A) (“[a]n 'on duty' meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”); McFarland v. Guardsmark, LLC , 538 F. Supp. 2d 1209, 1217 n.3 (N.D. Cal., 2008). Whether an employer has satisfied each of these elements may generally be adjudicated on a classwide basis.

Under the first element of the defense, an employer is entitled to offer an on-duty meal break to employees only if “the nature of the work prevents an employee from being relieved of all duty ' .” See, e.g., 8 CCR 11040(11)(A). “The test of whether the nature of the work prevents an employee from being 'relieved of all duty' is an objective one” [DLSE Enforcement Manual, at ' 45.2.3.1], and is focused on the employer's business “overall.” See West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 42074, 14 (E.D. Cal., 2006) (rejecting an employer's argument that “the nature of the work exception applies on a case-by-case, shift-by-shift basis[,]” as “ the exception was more likely provided to allow employers some relief when the nature of the work in their business overall does not permit a mid-shift meal break.”). As the nature of the work element is one that applies to all employees equally, courts have concluded that this issue is one that may, and properly should, be adjudicated on a class-wide basis. See, e.g., Bufil, 162 Cal. App. 4th at 1203-1204 (concluding that the issue of whether an employer's practice of scheduling a single employee to work alone was sufficient to satisfy the “nature of the work” element was “a legal question concerning the liability of Dollar to each putative class member.”); West v. Circle K Stores, Inc., 2006 U.S. Dist. LEXIS 42074, at 14.

Under the second and third elements of the defense, an employer may be held liable if it utilizes the on-duty exemption without first securing a written agreement from employees, or if the written agreement fails to state expressly that the employee may revoke the agreement at any time. See e.g., 8 CCR 11040(11)(A); McFarland, 538 F. Supp. 2d at 1217, n.3. As an employer's act of obtaining (or failing to obtain) the requisite written consent will generally be a standardized practice common among all employees, both of these elements are susceptible to class adjudication.

Importantly, while the on-duty exemption “applies only to meal periods, not to rest breaks” (Bufil, 162 Cal. App. 4th at 1205), employers who seek to defend a meal break action by such means may be unwittingly setting up an argument for class adjudication of rest period claims under barrier theory. Indeed, an employer who advocates that it was entitled to invoke the on-duty meal break exemption based on the inherent nature of its work by necessity must make an admission that common impediments existed that precluded free access to all breaks ' including rest periods. An employer cannot have it both ways. An employer that utilizes the on-duty meal break exemption to overcome inherent impediments will be liable if no action is taken to provide employees some means to access off-duty rest periods. Under most circumstances, the employer's effort to avail itself of the “on-duty” exemption all but ensures that rest break claims will be amenable to class adjudication as well.

Claims Based on Facially Unlawful Break Policies

Courts have also continued to certify classes based on meal and/or rest period policies alleged to facially violate meal and rest period requirements set forth in the Wage Orders. See, e.g., Bibo v. Fed. Express, Inc., 2009 U.S. Dist. LEXIS 37597, 30 (N.D. Cal., Apr. 21, 2009) (“Plaintiffs have identified the relevant policies and the law with which they argue the policies are inconsistent, and as such offer a common question of law and fact that predominates over individual inquiries.”). In Bibo, the court certified meal period subclasses based on policies which violated provisions requiring that: 1) a meal period be uninterrupted; and 2) breaks be provided after the fifth hour of work. See Bibo, 2009 U.S. Dist. LEXIS 37597, at 27-35.

Claims Based on Waiver By Collective Bargaining Agreement

In addition to the forgoing, class-wide claims may also be predicated upon a uniform waiver of meal and rest periods by way of a collective bargaining agreement. Meal and rest periods are not exempted under Labor Code ' 514, and as such, cannot be subject to waiver by a collective bargaining agreement as a matter of law. See Zavala v. Scott Brothers Dairy, Inc. , 143 Cal. App. 4th 585, 593 (2006); Valles v. Ivy Hill Corp. , 410 F.3d 1071, 1081-82 (9th Cir., 2005) (holding that “any provision of the collective bargaining agreement purporting to waive the right to meal periods would be of no force or effect: The right in question is plainly nonnegotiable.”); Tormey v. Vons Cos., Inc., 2007 U.S. Dist. LEXIS 66010 (S.D. Cal. Sept. 5, 2007). Based on such authority, an employer's effort to secure a universal waiver by such means presents a common issue ideal for class adjudication.

Claims Based on Misclassification of Exempt Status

Finally, classwide claims may also be predicated upon a challenge of an employer's policy of improperly classifying employees as exempt. As a general rule, meal and rest period requirements do not apply to exempt employees under the Wage Orders. See, e.g., 8 CCR 11040(1)(A) (“Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities.”); Wiegele v. FedEx Ground Package Sys., 2008 U.S. Dist. LEXIS 10246, 6 (S.D. Cal. Feb. 12, 2008) ( holding that “[a]n employee classified as 'exempt' ' is not covered by California's overtime and meal and rest period laws” and “[i]f a classification is challenged, the employer must demonstrate that its 'exempt' classification is proper.”). Thus, where an employer maintains that it was not required to provide breaks based on a policy of categorically classifying certain groups of employees as exempt, that policy may, in some cases, be adjudicated on a class-wide basis. See, e.g., Wiegele, 2008 U.S. Dist. LEXIS 10246 (granting certification of manager class alleging, among other things, the failure to provide meal and rest periods based on employer's improper exempt classification).

Conclusion

In sum, the Brinker line of cases falls far short of a fait accompli in terms of a categorical bar to class adjudication of meal and rest period claims. In a post-Brinker world, just as before, standardized policies and practices that categorically impede employee access to meal and rest periods continue to present the paradigm theory for class adjudication of a meal and/or rest period claim.

Matt C. Bailey is a senior associate with Los Angeles-based Khorrami Pollard & Abir LLP and serves as co-chair of the firm's Class Action Practice Group. He may be reached at [email protected].