Recently, we kicked off the blog series, The Battle After Brinker, to explore the current controversy over the meaning of the California Supreme Court’s decision in Brinker. This week, we examine a recent skirmish—the proceedings that occurred in the Brinker case in the trial court, on remand—and what it might portend for class certification of meal and rest break claims.
An employer’s lack of a common policy supports class certification? The trial court first certified a meal break class for the period when the employer lacked a meal break policy. As we previously explained, no law requires an employer to have a meal break policy; yet the trial court certified a class of employees who were not subject to any uniform meal break policy.
But informing employees about their break rights in a common policy could also support class certification? The trial court also certified a meal break class for the period in which the employer had adopted a meal break policy—including the period after the employer amended its policy in response to Brinker.
A scary part of this decision is that, even in the face of a facially lawful policy, the plaintiffs argued that other common policies—for example, a tip forfeiture policy—had the effect of discouraging breaks. The trial court granted class certification while observing that there is no dispute that [the employer’s] written policy applied to all putative class members.” Given this analysis, it would seem to be immaterial to the court if the policy, in fact, was facially lawful under Brinker.
Wait, what? The trial court assumed that the plaintiffs’ class theory was amenable to common proof, without regard for whether the presence of a uniform policy (or the absence of a policy) violated the law: “Determining the validity of the policy is not in any sense necessary to decide whether its invalidity is subject to common proof.” This curious approach is not one that the Brinker court endorsed. As the Seventh Circuit reminded, in a decision that Brinker cited: “If something about ‘the merits’ also shows that individual questions predominate over common ones, then certification may be inappropriate.”
Is the sky falling? Not quite yet. This is just one trial court order and there are other trial courts that have interpreted Brinker differently. Trial court rulings often require appellate correction. Here, the trial court focused inappropriately on whether the common policy formed the basis for a common, predominating question—not on whether there was a basis for proving a “common harm.” The trial court, while suggesting that it was focusing on whether common evidence could prove the plaintiffs’ class theories, failed to consider how a class trial would proceed in a manageable way. Omitting that critical part of the analysis opens the way to erroneous class certifications.
Workplace solution: It may be the case that Brinker did not signal an end to meal and rest break class actions but rather the beginning of a new battle. Employers may be well-advised not only to maintain a Brinker-compliant meal and rest break policy, but also to generate evidence of compliance on an on-going basis, perhaps in the form of daily or weekly employee confirmations that their breaks were provided, and perhaps also in the context of a complaint mechanism that requires employees contemporaneously to record failures of compliance with break policies. Employers also should stay tuned to The Battle After Brinker.