And the Beat Goes On: You’ve Still Not Heard the Last of Brinker (U.S. – California)

In April 2012, we covered the California Supreme Court’s long-awaited clarification on state law regarding when and how meal and rest periods must be provided to non-exempt employees. Of note, employers must “provide” California employees with required meal breaks—meaning it need not police employees or force them to take meal breaks—after no more than five hours of work and must “permit” rest breaks to be taken for every four hours of work or major fraction thereof, meaning more than 2 hours, unless total daily work time is less than 3½ hours.

On remand from the Supreme Court, the trial court recently ruled on the plaintiffs’ motion to certify a Meal Period Subclass on claims that all California employees were denied meal periods because defendant Brinker’s corporate meal period policies were unlawful. Much is at stake: the class period–which extends over 13 years—captures over 100,000 past and present nonexempt Brinker employees, including workers at restaurants such as Chili’s Grill & Bar, Maggiano’s Little Italy, Romano’s Macaroni Grill, Corner Bakery Cafe, and Cozymel’s Mexican Grill.

In arguing for certification, the plaintiffs asserted that Brinker’s corporate policies are facially unlawful because: (1) before 2002, it had no meal period policy; (2) between 2002 and 2012, its policy failed to inform employees of their right to take a second meal period; and (3) from 2002 to the present, its policy failed to accurately state the specific times employees were entitled to take meal periods. Plaintiffs argued that the facial validity of Brinker’s meal period policies is a common question which predominates the litigation and makes class treatment appropriate.

On September 26, the trial court agreed [pdf], stating that for purposes of determining whether the plaintiffs’ theory of recovery is susceptible to common proof, the court must assume the plaintiffs would in fact prove the policy is invalid. Based on that assumption, the court noted that the “facial” validity of a uniform written policy “is a prototypical instance where proof as to one will provide proof for all.”

The court rejected the idea that individualized inquiries predominated on the theory that—whether the policy is facially valid or not—Brinker could only be liable for meal period violations if employees actually missed their breaks. In the court’s view, ““[w]hether or not the employee was able to take the required break goes to damages, and ‘[t]he fact that individual employees may have different damages does not require denial of the class certification motion.’” Specifically, because the plaintiffs had limited their theory of liability to one that relied on the facial invalidity of Brinker’s policy (which theory could be proved on a common basis), it was irrelevant for purposes of class certification that some individual employees conceivably could establish a violation of meal period laws by relying on individualized evidence “unique to their particular circumstances” because those employees could decide whether to participate in the class as defined by the plaintiffs or to instead opt out and pursue a claim based on their own individualized evidence.

Though the trial court’s ruling has no precedential effect, we can assume that attorneys are tracking all rulings in this highly-publicized case. We can thus anticipate that plaintiffs filing future wage and hour class actions will attempt to limit their theories of liability to those that can be premised on the alleged facial invalidity of a corporate policy so as to increase the likelihood that a presiding court will find a common question justifying class certification. Have you reviewed your policies lately?