Plaintiffs Face an Increasingly Uphill Battle to Certify Meal Period Class Actions Post-Brinker

In 2012, the California Supreme Court, in Brinker Restaurant Corp. v. Superior Court, held that employers must provide an uninterrupted meal period, but were not obligated to ensure that their employees took them.  The decision rejected the position taken by the Department of Labor Standards Enforcement (DLSE) since 2001 that employers had an affirmative obligation to ensure that employees refrained from performing work during their meal periods. The Brinker decision constituted a major victory for employers in the ongoing battle against class action lawsuits asserting meal period violations.

The impact of the Brinker decision was on full display in In re Walgreen Co. Overtime Cases, a recent decision from the Court of Appeal.  The Court of Appeal, in upholding the trial court’s denial of class certification of the meal period class, explained that under the “make available” standard set forth in Brinker, if the employer provides a break opportunity to the worker, the employer incurs no liability if the employee decides to skip or delay the break.  Walgreens employees testified during deposition that they were aware that meal periods were available to them, but that they would skip lunch because they wanted to leave work early.  Whereas the DLSE previously would have held the employer responsible for this practice, post-Brinker, the employer is not responsible for the employees’ personal decision to skip lunch.

The Court of Appeal acknowledged that the “make available” standard can make it harder for plaintiffs to prove class-wide employer meal break violations.  Plaintiff attorneys and their experts can no longer point to computer records showing a number of employees failed to clock out for lunch and conclude that an employer violated the law.  They must now show that the missed meal period was due to the employer’s failure to actually provide an uninterrupted meal period.

Meal break classes are harder to certify under a make available test because the fact of a missed break does not dictate the conclusion of a violation (and thus employer liability).  Rather, under the make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable.

In In re Walgreen Co. Overtime Cases, the plaintiffs’ class certification motion failed because they did not provide proof that employees were prevented the opportunity to take meal breaks.  The Court of Appeal rejected the plaintiffs’ use of boilerplate employee declarations stating that employees were not provided meal breaks, agreeing with the trial court that these declarations were unreliable based on the fact that many of the employees subsequently recanted their declarations in their depositions.  The Court of Appeal also rejected their expert’s analysis of payroll data, in which the expert assumed a violation every time a worker did not take a meal break, but failed to perform any analysis of the actual reasons for the missed meal period.  Finally, the Court of Appeal held that emails from Walgreen’s upper management to its store managers, exhorting the store managers to try and ensure compliance with meal break law, actually supported a finding that Walgreens made efforts to provide meal breaks to all employees.

The In re Walgreen Co. Overtime Cases decision is further noteworthy because the Court of Appeal refused to follow a proposition set forth in Justice Werdegar’s concurring opinion in Brinker , that if records showed a meal period was not taken, a rebuttable presumption arises that the employee was not provided an uninterrupted meal period.  In the post-Brinker meal period class actions, the burden rests firmly on the shoulders of the plaintiffs to prove that employees who did not take meal periods did so because the employer failed to provide a meal period.  And, as the In re Walgreen Co. Overtime Cases decision shows, the evidence required to certify a meal period class will likely be significant.