The Return of the Pro-Employer Brinker Opinion

The repackaged opinion in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __ was finally published today. The opinion is 53 pages long, and as interesting as it is, I'm going to have to pass on the opportunity to do an in-depth analysis for the same reason that I missed a wage and hour class action mediation today - my son's birth. The opinion is just as pro-employer and just as adverse to class action litigation as the original opinion, which was vacated shortly after a petition for review was filed last October. The case can be summed up with the following excerpts from the opinion:

In this action involving alleged violations of laws governing rest and meal breaks, we are presented with the following question:  Did the trial court err in certifying this matter as a class action without first determining the elements of plaintiffs and real parties in interest Adam Hohnbaum, Illya Haase, Romeo Osorio, Amanda June Rader and Santana Alvarado's (collectively plaintiffs) claims against defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker International Payroll Company, LP (collectively Brinker)?

Reconsidering the matter following a transfer from the California Supreme Court and our vacating of the original opinion in this matter, we first recognize that "in light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the statutory provisions are to be liberally construed."  (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702.)   We also recognize mandatory rest and meal breaks have "have long been viewed as part of the remedial worker protection framework" designed to protect workers' health and safety.  (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy).)  In addition, we note that in construing the applicable statutes and regulations, we look to the plain language of the laws and interpret them in a manner consistent with the Legislature's intent.  (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.)

With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment.  Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.  We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment.  Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock.  Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class.

You can download the full text of Brinker Restaurant Corp. v. Superior Court here in pdf or Word format. If you do any wage and hour work, or any class action work, this is must reading until and unless the Supreme Court grants review.

Glancing over the opinion, I couldn't help but think that if this had been the first appellate decision in California concerning wage and hour class actions, there might never have been a second wage and hour class action. However, it was not the first, and Brinker disagrees with many prior opinions, most specifically, Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963, which it discussed at length, and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, which it did not even mention, and more generally, a string of cases which promote class actions as an efficient way to resolve wage and hour disputes and a string of cases which discuss the remedial nature of wage and hour laws in California. With Brinker and Cicairos presenting such starkly contrasting views on California law, with Brinker presenting so many novel ideas regarding wage and hour claims and class actions, and with so many U.S. District Court cases disagreeing with Cicairos and each other, this case looks like an outstanding candidate for Supreme Court review.

Comments

[Observer]

It attempts to harmonize itself with Cicairos, and I don't think it contradicts Bufil. It does not say that rest/meal period claims can never be certified, but that the showing must be a regular policy to prevent employees from taking breaks. My reading of Bufil was that such a policy existed (or at least the court thought enough evidence of its existence was there to justify class certification). Cicairos can be read many ways, but this court reads it as denying summary judgment for the employer where there was a triable issue of fact as to whether the employees were given an opportunity to take meal and rest periods. It interprets the phrase "relieve employees of all duty" (used in Cicairos without explanation) as give employee permission to stop working and take a break, rather than force them to stop. Given that relieve has multiple possible meanings, one can argue that it merely harmonizes itself with Cicairos. The bigger question to me is whether it is consistent with Sav-On, given that it reversed the cert orders and ordered that cert be denied. Several courts have been doing that in wage/hour cases lately (mostly to force cert, such as in Bufil) and I always thought that was improper in light of Sav-On. Perhaps the decision should have been remanded with instructions to reconsider cert in light of the directions from the court of appeal?

[DS]

Actually, it doesn't even go as far as to say that "the showing must be a regular policy to prevent employees from taking breaks." It says that "employers cannot impede, discourage or dissuade employees from taking meal periods". Discouraging or dissuading is a far looser standard that preventing.

[Rick]

They made it clear they will do whatever it takes to reach this result, even reading different language for meal and rest breaks to mean the same thing, and both need only be made available. They completely ignore the regulations that distinguish between shifts under six hours, for which you are allowed to waive the break, and shifts over six hours, with no waiver included in the rules.

[BP]

1. Glad to know the DCA "recognizes that...statutory provisions are to be liberally construed." - NOT!

2. I agree with Rick (above) - the DCA totally ignored the "meal waiver" provisions of LC 512. If employees can always waive their meals - even when they work 7, 8, 9, or more hours a day (as the DCA seems to think), it makes the the "6 hour or less" meal waiver provision of LC 512 superfluous.

3. I suggest that Arnold and the justices who decided Brinker try a.) coming to work for the next month at 8:00am, b.) taking their "lunch break" between 8:30am-9:00am, and c.) working straight through until 6:30pm with no other meal breaks. Maybe someone should suggest this to the Supremes when they hear the case.

[AA]

The California Supreme Court is not likely to be happy about this. The 4th Circuit already had to rework this once and they still came to the same terrible conclusion.

[class counsel]

This case can be easily distinguished on the facts. Did you see the evidence about how Brinker settled with the DLSE and then put "meal compliance officers" in charge of people to ensure they took breaks, tracked breaks on "meal compliance logs", assigned rolling break relievers, and took other proactive steps to make sure employees were taking breaks? How many defendants have that kind of evidence? Not many. I believe those facts made the court sympathetic.

Bad facts ---> bad law.

Now he's trying to cut all the state workers to minimum wage. Maybe he hates working people, because he thinks they are stupid for watching all his movies, and because they don't contribute to his campaign.

[Michael J. Walsh]

I think you might have tagged the wrong post there, partner.

[dogfacegeorge]

I agree with the above, but would add this thought. The Wage Orders do NOT say that the R must "provide" a MP. Instead, the Wage Orders lay down a prohibition: the R shall not "employ" someone without a MP. And "employ" is explicitly defined as including "to permit" and "to suffer" to work. So, literally, the Wage Orders say this: The R shall not PERMIT or SUFFER an E to work without a MP.

[RL]

So there is now a split of authority between Brinker and Cicairos. The split is equal. I haven't read Bufil, maybe the split isn't even equal. Why so much defense excitement?

[unbrinked]

I have two cases where I know we can distinguish our facts from those in Brinker, but the defense already told me the won't put any money on the table unless Brinker is overturned. I remember getting the same reaction when Murphy first came down. People who settled too early gave up more than half of their cases. I'm not going to make that mistake.

With this case out there, I have one piece of advice to plaintiff's lawyers. Don't waste a dime mediating one of these cases before Altman. He didn't like meal period cases even before Brinker.

[pc]

I had an employer's attorney tell me that there is a 97% chance the Supreme Court will deny review based on the overall rate of granting review. How many have this kind of conflict going for them?

Cicairos: "employers have “an affirmative obligation to ensure that workers are actually relieved of all duty ... They also have a duty, under wage order No. 9, to record their employees' meal periods."

Brinker: "while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken"

I've never seen a case with a stronger argument for depublication or review.