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 Rptr. 3d 781, 800 (2008), review granted and opinion superseded in 85 Cal.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.