California employers, who, only thirteen months ago, thought they no longer had to worry about wage/hour class actions by employees over meal and other rest breaks need to worry again.

When the California Supreme Court handed down its blockbuster decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), thirteen months ago, California employers collectively sighed in relief. Why? Because Brinker’s main holding was that employers only need to provide an opportunity for employees to take meal breaks. There was no need for employees to actually clock out and stop work for breaks. Because liability turned on whether an employee consented to missing a break, most observers concluded that such an inherently employee-by-employee would make class action lawsuits and class-based relief impossible, unless a rash employer prohibited employees from taking breaks.

But most observers missed an important aspect of Brinker, and the California Court of Appeal seized on that part of Brinker to certify class action status where an employer’s break policy fell short of state law, regardless of whether actual violations occurred. 

Brinker actually reversed a lower court order denying class certification of a rest break claim. The employer’s written policy of providing a ten-minute rest break for every four hours of work ignored the requirement that employees receive a rest break for any “major fraction” of a four hour segment. Due to this policy lapse, “[c]lasswide liability could be established through common proof if [employees] were able to demonstrate that, for example, [the employer] under this uniform policy refused to authorize and permit a second rest break for employees working shifts longer than six, but shorter than eight, hours.” (Brinker, 53 Cal.4th at 1033.) The California Supreme Court ordered class action status without examining whether the employer had denied second breaks to anyone who had worked six- to eight-hour shifts. Instead, class certification stemmed solely from the failure of the policy alone to fully meet the required legal standard.

In Faulkinbury v. Boyd & Associates, 2013 WL 1927019 (May 10, 2013), the Fourth District Court of Appeal pushed this portion of Brinker to its conclusion. Faulkinbury involved a written policy requiring on-call security guards to take meal breaks while on call and get paid for those breaks, something permitted by California law under limited circumstances. The trial court denied class certification of the representative employee’s meal break claim, and the Court of Appeal, prior to Brinker, affirmed denial. After Brinker was issued, the California Supreme Court vacated Faulkinbury and ordered the Court of Appeal to reconsider its denial of class relief in light of Brinker. The Court of Appeal “got the message” and ordered the trial court to grant class certification.

In this second go-round, the Court of Appeal in Faulkinbury focused solely on the employer’s written policy. Like Brinker, it ignored whether the facts in the record revealed any actual violation of state law. “Brinker teaches that we must focus on the policy itself and address the issue of whether the legality of the policy can be resolved on a classwide basis.” (Emphasis in original.) The Court of Appeal concluded that “Brinker leads us now to conclude Boyd would be liable upon a determination that Boyd’s uniform on-duty meal break policy was unlawful.” That second ruling ignored its earlier practical realization “that even if Boyd’s on-duty meal break policy was unlawful, Boyd would be liable only when it actually failed to provide a required off-duty meal break.” This time the Court of Appeal ruled that actual facts “go[] to damages, and ‘[t]he fact individual [employees] may have different damages does not require denial of the class certification motion” (emphasis in original). 

Such a head-scratching, impractical rule cannot be reconciled with the United States Supreme Court’s class action decisions in cases such as Wal-Mart v. Dukes, 564 U.S. __, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S.Ct. 24 (2012). Those cases direct denial of class action states unless resolution of all liability issues is possible on a class-wide basis. 

Making the Brinker-Faulkinbury departure from Dukes and Behrend more puzzling is that  Brinker cites and quotes the U.S. Supreme Court in Dukes with approval. 

Unless and until the Brinker-Faulkinbury rulings on wage/hour and class action determinations change, by law, by California court reconsideration, , expect class certification of meal and other break claims whenever a court finds that a written break policy falls short of state mandates, regardless of whether there is actual liability alleged or proven. 

Puzzling? Certainly. Impractical? Yes. Illogical? For sure. Wrong? That’s our bet.

Welcome to the wage-hour class action Wonderland we call California, where nearly everything is seen through a looking-glass.