California Supreme Court Delays Decision In Long Awaited Brinker Meal Period Case

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the California Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.  

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.

After the California Supreme Court granted review of Brinker, the Court of Appeal issued seven additional decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Hermandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, Lamps Plus Overtime Cases, and Santos v. Vitas Healthcare.  However, the California Supreme Court promptly granted review of each of those seven decisions, too, and, like Brinker, those seven decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them.  

This state of affairs left employers, employees, and courts tasked with resolving disputes over whether an employer has or has not complied with its obligations to "provide" required meal periods in the dark about what the law requires and has complicated the handling of the innumerable class action wage and hour lawsuits brought against California employers. 

On November 8, 2011, over three years after granting review, the California Supreme Court conducted the long awaited oral argument.  

In an unusual turn of events, on December 2, 2011, the court granted the request of the California Employment Law Council to submit an additional post-hearing amicus curiae or "friend of the court" brief addressing the issue of "rolling" meal breaks, which was raised during the November 8, 2011 oral argument.  The issue concerns when during the workday employers must "provide" the first meal period and whether, and if so, when during the workday employers must "provide" a second meal period.  It has been widely believed that an employer is required to "provide" a second meal period only when a non-exempt employee works more than 10 hours in a workday and only after the tenth hour of work.  However, on account of language in the Industrial Welfare Commission Wage Orders stating "[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes," the court is now considering whether an employee who takes a meal period relatively early in his or her workday is entitled to a second meal period if an employee works 5 hours after taking an "early" meal period, even if the employee's workday does not exceed 10 hours.

On December 14, 2011, the California Supreme Court issued an order permitting the parties to the case to file no later than January 13, 2012, answers to the  additional post-hearing amicus curiae brief submitted by the California Employment Law Council and permitting replies to any such answers to be filed no later than January 13, 2012.  In that same order, the California Supreme Court vacating "submission of the cause" and stating the case will be deemed resubmitted on January 13, 2012.  By that order, the court effectively extended the 90 day deadline for the court to issue its decision in the case from February 6, 2011 (i.e., 90 days after the close of the November 8, 2011 oral argument) to April 11, 2012.  

We are continuing to monitor this important case, and will report on further developments as information becomes available.

California Supreme Court Accepts Post Hearing Additional Briefing In Pending Brinker Meal Period Case: Will The Court Require "Rolling" Meal Periods?

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the California Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.  

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.

After the California Supreme Court granted review of Brinker, the Court of Appeal issued seven additional decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Hermandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, Lamps Plus Overtime Cases, and Santos v. Vitas Healthcare.  However, the California Supreme Court promptly granted review of each of those seven decisions, too, and, like Brinker, those seven decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them.  

This state of affairs left employers, employees, and courts tasked with resolving disputes over whether an employer has or has not complied with its obligations to "provide" required meal periods in the dark about what the law requires and has complicated the handling of the innumerable class action wage and hour lawsuits brought against California employers. 

On November 8, 2011, over three years after granting review, the California Supreme Court conducted the long awaited oral argument.  

In an unusual turn of events, on December 2, 2011, the court granted the request of the California Employment Law Council to submit an additional post-hearing amicus curiae or "friend of the court" brief addressing the issue of "rolling" meal breaks, which was raised during the November 8, 2011 oral argument.  The issue concerns when during the workday employers must "provide" the first meal period and whether, and if so, when during the workday employers must "provide" a second meal period.  It has been widely believed that an employer is required to "provide" a second meal period only when a non-exempt employee works more than 10 hours in a workday and only after the tenth hour of work.  However, on account of language in the Industrial Welfare Commission Wage Orders stating "[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes," the court is now considering whether an employee who takes a meal period relatively early in his or her workday is entitled to a second meal period if an employee works 5 hours after taking an "early" meal period, even if the employee's workday does not exceed 10 hours. 

Suffice it to say it would be a stunning development if the court holds employers are required to "provide" such "rolling" meal periods.  Such a holding would potentially expose California employers to truly unanticipated potential liability for penalties for failing to "provide" a second meal period even when an employee does not work more than 10 hours in a workday and would further compromise employers' ability to provide employees flexibility as to when meal periods take place.

We are continuing to monitor this case, and will report on further developments as information becomes available. 

Appellate Court Afirms $187 Million Verdict Against Wal-Mart In Meal And Rest Period Case

By Christopher S. Andre and Scott K. Dauscher

MSNBC reports today that a Pennsylvania appellate court affirmed a $187.6 Million verdict against Wal-Mart Stores, Inc., in a class action lawsuit for allegedly denying hourly employees meal and rest breaks.  Although the appellate court affirmed the damages verdict, it did order the trial court to recalculate the $45.6 Million award of attorneys fees to the employees' attorneys, indicating the trial court erred by "double-counting" some factors when calculating the attorney's fees award. Click here to read the story. 

Meal and rest period cases continue to be a significant source of potential exposure for employers large and small.  Employers concerned about such potential exposure should consider consulting experienced employment law counsel about strategies for reducing potential meal and rest period liability.  Among other things, having in place appropriate written meal and rest period policies and documenting the company's adherence to those policies is often the best defense to meal and rest period claims. 

California Supreme Court Grants Review Of Another Meal Period Decision Favorable To Employers

By Christopher S. Andre and Scott K. Dauscher

As many of our readers know, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

On October 22, 2008, the California Supreme Court granted review of the Court of Appeal's decision in Brinker to decide "the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers."  Over two years later, the case still has not been scheduled for oral argument, and it remains to be seen when the California Supreme Court will decide the case.

Meanwhile, the California Supreme Court has repeatedly granted review of subsequent Court of Appeal decisions holding as in Brinker that an employer's obligation to "provide" meal periods to non-exempt employees is to make the required meal periods available and not to ensure that non-exempt employees take the meal periods provided to them: Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brooker v. Radioshack Corporation, Hermandez v. Chipotle Mexican Grill, and, most recently, on May 18, 2011, Tien v. Tenet Healthcare.  As a result, those favorable decisions can no longer be cited to and are no longer binding precedent, and employers' obligations regarding meal periods for non-exempt employees remain uncertain as it is difficult to predict how the California Supreme Court will decide the issue.  We will continue to monitor these issues and will report on further developments when they occur.

Court of Appeal Holds Attorney's Fees Are Not Recoverable For Claims For Meal Or Rest Period Violations

By Christopher S. Andre and Scott K. Dauscher 

Not every cloud has a silver lining, but some do, and the California Court of Appeal's decision today in Thomas McGann v. United Parcel Service, Inc., contains a terrific silver lining for employers.  Thomas McGann was employed by United Parcel Service, Inc., ("UPS") for a number of years and worked as an On Road Supervisor.  UPS classified Mr. McGann as an exempt employee and therefore did not pay Mr. McGann premium pay (i.e., overtime pay) for hours worked in excess of eight hours in a workday.

Mr. McGann filed suit against UPS alleging six causes of action: (1) failure to pay overtime pursuant to Labor Code sections 510 and 1194, (2) failure to provide meal periods and rest periods pursuant to Labor Code section 226.7, (3) failure to provide compliance wage statements pursuant to Labor Code sections 226 and 226.3, (4) common law conversion premised on the theory Mr. McGann had a property interest in the premium pay he alleged UPS owed to him but failed to pay to him, (5) injunctive and other equitable relief, and (6) unfair competition pursuant to Business and Professions Code section 17200, et seq. 

UPS prevailed on all six of Mr. McGann's causes of action, and the trial court made an award of attorney's fees and costs in favor of UPS.  Mr. McGann appealed the award of attorney's fees and costs.

On appeal, in a somewhat paradoxical decision, the court reversed the trial court's award of attorney's fees in favor of UPS and affirmed the trial's court's award of costs to UPS.  The Court of Appeal held UPS was not entitled to an award of prevailing party attorney's fees because Labor Code section 1194 permits only an award of attorney's fees to an employee who prevails on a claim for alleged unpaid minimum wages or overtime compensation and does not permit an award of prevailing party attorney's fees to an employer that defeats such a claim.  The Court of Appeal held, also, that there was no basis for the trial court to award prevailing party attorney's fees to UPS as to Mr. McGann's other claims because no statute permits such an award.

The Court of Appeal's decision to affirm the award of costs to UPS is good news for employers, but it is not the silver lining alluded to above.  The silver lining alluded to above is the court's holding the prevailing party attorney's fees provisions of  Labor Code section 218.5 do not apply to claims for additional compensation under Labor Code 226.7 for an employer's alleged failure to provide required meal periods and/or rest periods.   In Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, the California Supreme Court held the additional compensation to be awarded to employees under Labor Code section 226.7 when an employer fails to provide required meal periods and/or rest periods is more akin to a wage than a penalty and was therefore subject to a three-year statute of limitations and not the one-year statute of limitations applicable to statutory penalties.  Based on that decision, it was widely believed that the prevailing party attorney's fees provisions of Labor Code section 218.5 for claims for unpaid wages other than minimum wages or overtime wages applied to claims for additional compensation under Labor Code section 226.7 for meal and/or rest period violations.  However, in today's decision, the Court of Appeal held the additional compensation payable under Labor Code section 226.7 is more like a wage than a penalty for purposes of determining which statute of limitations applies to such claims, as the Supreme Court held in Murphy, but not sufficiently like a wage to be subject to the prevailing party attorney's fees provisions of Labor Code section 218.5. 

This is a terrific silver lining for employers.  It means employees who are determined to be the prevailing parties on claims for an employer's failure to provide required meal periods and/or rest periods are likewise not entitled to an award of attorney's fees based on such claims and such claims are very, very commonly asserted in wage and hour class action lawsuits.  But there is more.  Because the Court of Appeal held the additional compensation payable under Labor Code section 226.7 is not sufficiently like a wage to be subject to the prevailing party attorney's fees provisions of Labor Code section 218.5, it follows that claims for such non-wage additional compensation cannot be the basis for an award of "waiting time" penalties under Labor Code section 203 because section 203 provides for an award of "waiting time" penalties only when there has been a "willful" failure to pay wages due and owing at the time of termination. 

Given the amount of the attorney's fees award at state (approximately $100,000) and other considerations, we doubt UPS will petition the California Supreme Court for review of today's decision, and it is not immediately clear that there would be a viable basis for Mr. McGann to petition for review of today's decision.  The more likely risk to today's decision would be a request by the plaintiff's bar or by labor unions to depublish the decision so it becomes unciteable.  We will monitor this issue and will report any further significant developments. 

Court Of Appeal Doubles Potential Exposure For Meal And Rest Period Claims

By Christopher S. Andre and Scott K. Dauscher

Labor Code section 226.7 states that if an employer fails to "provide" an employee a meal period or a rest period in accordance with an applicable Industrial Welfare Commission wage order, "the employer shall pay the employee the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided."

In our experience, many if not most judges and most attorneys have understood Labor Code section 226.7 to mean the employer could be liable for one such penalty per workday regardless of how many rest periods or meal periods the employer failed to "provide" to an employee during a single workday, and, before today, there was no reported California decision to the contrary.

Today, in United Parcel Service, Inc. v. Superior Court, the Court of Appeal held Labor Code section 226.7 "permits up to two premium payments per work day."  In other words, the court held Labor Code section 226.7 authorizes the recovery of up to two additional hours of compensation per workday per non-exempt employee where the employer is found to have failed to "provide" in a workday both  one or more meal periods and one or more rest periods.  The court held Labor Code section 226.7 is reasonably susceptible to two contrary interpretations and therefore relied greatly on legislative history to reach its conclusion that up to two section 226.7 penalties can be recovered per workday per employee.  The court states as follows:"[w]e conclude, based upon the wording of section 226.7, subdivision (b), the legislative and administrative history of the statute and IWC wage orders, the public policy behind the statue and wage orders, and also the principle that we are to construe section 226.7 broadly in favor of protecting employees, that the employees in this case may recover up to two additional hours of pay on single work day for meal period and rest period violations -- one for failure to provide a meal period and another for failure to provide a rest period."

Today's decision also potentially opens the door to various derivative claims that might be based on an alleged failure to pay to an employee two Labor Code section 226.7 penalties when the employer fails to provide both one or more meal periods and one or more rest periods in a workday.  For example, if an employer fails to pay two such penalties when they are required, that could open the door to claims the employer failed to provide fully complaint wage statements as required by Labor Code section 226 by failing to accurately state all wages earned during a pay period by failing to reflect all required 226.7 payments during a pay period and could open the door to claims the employer is liable for Labor Code section 203 "waiting time" penalties because the employer ailed to pay to employees who quit or who are terminated all wages due and owing, which would include any required Labor Code section 226.7 penalties, which the California Supreme Court holds are wages. 

Today's decision further underscores the need for employers to have in place compliant meal period and rest period policies and practices. 

Court of Appeal Issues Additional Decision Holding An Employer Is Required To Make Meal Periods Available But Is Not Required To Ensure Employees Take Their Meal Periods

By Christopher S. Andre and Scott K. Dauscher

Today, in Kevin Tien v. Tenet Healthcare Corporation, et al., the California Court of Appeal affirmed the trial court's denial of class certification of the plaintiff's claims and held an employer's obligation to "provide" non-exempt employees all meal periods required by Labor Code section 512 and by the applicable Industrial Welfare Commission Wage Order means the employer is required to make such meal periods available and is not required to ensure the employees take the meal periods made available to them.  

As part of its decision regarding the plaintiff employees' meal period claims, the court held substantial evidence supported the trial court's decision that class certification would not be appropriate because individual issues of fact predominated over common issues of fact and because class treatment would not be superior because "there are numerous and substantial questions affecting each class member's right to recover, following determination of liability to the the class as a whole."  The court explained the trial court's findings "coincide with the common-sense notion that individual questions about the reasons an employee might not take a meal period are more likely to predominate if the employer need only offer meal periods, but need not ensure employees take those periods."  The court reached a similar conclusion regarding the plaintiffs' rest period claims, and stated, "Given that Tenant was obligated only to offer rest breaks, liability arose for Tenet only if its policy was a policy in name only and not observed in practice."

In addition, the court held substantial evidence supported the trial court's denial of class certification of the plaintiffs' claims for allegedly non-compliant wage statements, quoting with approval the trial court's determination that, "[t]he Court would have to determine whether each individual class member actually suffered injury or damages as a result of the pay stubs lacking the information required under the Labor Code . . . . Such highly individualized determinations would render the class mechanism impracticable . . . ."  

Unfortunately, we think the California Supreme Court will very likely grant review of this decision pending its long awaited decision in Brinker Restaurant Corp. v. Superior Court which would make today's decision uncitable.  As we previously reported here, the Supreme Court has granted review of every other post Brinker Court of Appeal decision holding an employer is required to make meal periods available but is not required to ensure employees take the meal periods made available to them. 

We are continuing to closely follow this developing area of the law and will report further significant developments as they occur. 

Employer's Meal Period Obligations Remain Uncertain While Employers Await Guidance From The California Supreme Court

By Christopher S. Andre and Scott K. Dauscher

On July 22, 2008, in Brinker v. Superior Court, the Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one an unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal  periods means to make the required meal periods available and not to ensure that employees take all required meal periods.  This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations. 

The good news was short lived, however.  Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker.  As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.  

After the California Supreme Court granted review of Brinker, the Court of Appeal issued four additional Court of Appeal Decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them.  See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., and Hermandez v. Chipotle Mexican Grill. However, the California Supreme Court promptly granted review of each of those four decisions, too, and, like Brinker, those four decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them. 

The Brinker decision has been fully briefed for well over a year, since July 20, 2009, but the Supreme Court still has not scheduled the case for oral argument.  As a result, it remains uncertain whether the law requires an employer to make required meal periods available or requires an employer to ensure employees take all required meal periods. No one can be certain how the Supreme Court will decide this issue until the court conducts oral argument and issues its decision.

Meal period violations can be a source of very substantial liability for employers.  When an employer is found to have failed to "provide" a required meal period, Labor Code section 226.7 requires the employer to pay the employee one additional hour of compensation at the employee's regular rate of pay for each workday the employer failed to "provide" a required meal period.  In addition, the employer will generally be liable also for the plaintiff(s) "reasonable" attorney's fees and costs, and, possibly, for additional penalties.  Many if not most meal period cases are brought as class actions.  

In the class action context, the numbers can add up quickly.  For example, assume a class size of 500 current and former employees (many classes are much larger).  Assume, also, there is a finding the employer failed to "provide" required meal periods approximately half the time because the employer did not "provide" the meal periods within the first five hours of the employees' shift, because the meal period was not completely duty free, or because the meal periods were not uninterrupted for at least 30 minutes each day.  Assume, also, that the violations go back four years.  Finally, assume an average hourly wage of $20.00.  In that scenario, the liability just for the Labor Code section 226.7 additional hour of compensation would be approximately $5 Million.  

If anything, the legal climate in California has grown more challenging for employers during the last five years as appellate decisions have generally not been favorable for employers, and we think this situation is not likely to improve in the foreseeable future.  Fortunately, there are steps an employer can take to reduce the likelihood of being sued to begin with and to help defend against meal period claims if the employer is sued.  One of the most important steps an employer can take is to have a written meal period policy and to require employees to acknowledge their receipt of that policy and their understanding of that policy.  Some other important steps employers can take are to require employees to document ithat they took all required meal periods and to promptly notify the employer in writing if the employee did not take for any reason a required meal period.  Further, employers should consider disciplining employees who fail to follow such policies. 

New Court of Appeal Decision Potentially Helpful To Employers Opposing Class Certification Of Wage And Hour Claims

By Christopher S. Andre and Scott K. Dauscher

Today, in Faulkinbury v. Boyd & Associates, Inc., the California Court of Appeal issued a decision that might prove helpful to employers opposing motions for class certification of wage and hour claims.  The court reiterated that it is the plaintiff(s)' burden to show his or her claims are susceptible to common proof (i.e. proof of alleged liability common to all of the purported class members) and that a defendant employer "'may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues.'" 

In general, non-exempt employees must be provided at least one unpaid, duty-free meal period of at least 30 minutes each workday.  An additional unpaid, duty-free meal period may be required if an employee works more than 10 hours in a workday.  The Industrial Welfare Commission wage orders permit an employer to instead provide a paid on-duty meal period "when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job meal period is agreed to."

The plaintiffs in the case were employed as security guards who worked at numerous different locations.  They alleged, among other things, that the employer improperly required them to agree to paid on-duty meal periods, contending that the nature of their work did not prevent them from being relieved of all duty (i.e., that they should have been provided unpaid, duty-free meal periods instead of paid, on-duty meal periods).  The plaintiffs alleged also that they were not authorized and permitted to take all required rest periods and that the employer improperly calculated their overtime rates of pay. 

The trial court denied class certification, finding that common issues of law and fact did not predominate over individualized issues. 

The Court of Appeal affirmed the trial court's decision as to plaintiffs' meal period claims and as to plaintiffs' rest period claims, holding that the trial court correctly applied the law as to those claims and holding that the trial court's rulings as to those claims were supported by substantial evidence. 

The Court of Appeal was persuaded that the evidence in the record sufficiently showed that common issues of law and fact would not predominate over individual issues because there was no common proof showing whether or not the requirements for a valid on-duty meal period were or were not satisfied as to any particular security guard employee.  As to the plaintiffs' rest period claim, the Court of Appeal was persuaded that the declarations the employer submitted by employees stating they were authorized and permitted to take all required rest periods was substantial evidence supporting the trial court's conclusion that common issues of law and fact did not predominate over individualized issues because those declarations showed a lack of common proof as to whether the security guard employees were or were not authorized and and permitted to take all required meal periods. 

However, the Court of Appeal reversed the trial court's denial of class certification of plaintiff's claim that the employer incorrectly calculated the applicable overtime rates of pay because its calculations did not include annual bonus payments and other forms of alleged compensation provided to the security guard employees.  The Court of Appeal held that claim was susceptible to common proof because the claim could be determined based on the employer's payroll records.  In other words, the employer either correctly calculated the rate of overtime pay or it did not.  This part of the decision is still potentially helpful to employers because the Court of Appeal emphasized that the claim should have been certified because it was susceptible to common proof, and we believe many common wage and hour claims are in fact not susceptible to common proof.  

Eagerly Awaited California Supreme Court Decision Regarding Meal Periods Is Not Likely Until February 2011, At The Earliest

By Scott K. Dauscher and Christopher S. Andre

The issue of whether an employer's obligation to "provide" to non-exempt employees unpaid, duty free meal periods of at least 30 minutes means the employer must ensure that non-exempt employees actually take such meal periods or means the employer must merely make the meal periods available has been pending before the California Supreme Court since August 2008 when the court granted review of the Court of Appeal's decision in Brinker Restaurant Corp. v. Superior Court holding that an employer satisfies its duty to "provide" required meal periods by making required meal periods available to non-exempt employees.  On December 4, 2008, the Court also granted review of the Court of Appeal's decision in Brinkley v. Public Storage, which decided the issue the same way as the Brinker court.  

The California Supreme Court will not conduct any additional oral arguments this summer.  Therefore, September is the earliest that Brinker could be placed on the Court's oral argument calendar.   Assuming oral argument would then take place in November 2010, at the earliest, a decision by the Court is not likely to be issued until February 2011, at the earliest.

California Supreme Court Denies Review Of Court Of Appeal Decision That Might Make Class Certification Easier In Wage And Hour Cases

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, in Jaimez v. DAIOHS USA, Inc., a decision we think is wrongly decided in many ways, the California Court of Appeal might have made it significantly easier for plaintiffs to obtain class certification in wage and hour cases.

Alex Jaimez was employed by DAIOHS USA, Inc., as a Sales Route Representative, and filed suit alleging he was misclassified as an exempt employee during part of his employment, that he was not paid for all hours worked, that the did not receive all required meal and rest periods, and that his wage statements were not accurate.

The trial court denied Jaimez' motion for class certification, finding, among other things, that common issues of law and fact did not predominate and that Jaimez was not an adequate class representative.

In a wide-ranging opinion, the Court of Appeal reversed the trial court's decision to deny class certification. According to this Court of Appeal, the trial court erred when it found based on the evidence submitted in support of and in opposition to the motion for class certification that individual issues would predominate over common questions of law and fact. According to this Court of Appeal, in determining whether common issues of law and fact predominate, the inquiry is whether the plaintiff's "theory of recovery" is likely to prove amenable to class treatment.

The court's opinion might be read by some to mean that a trial court cannot consider the merits of evidence offered to rebut a plaintiff's "theory of recovery" (i.e., the plaintiff's allegations of wrongdoing) when ruling on a motion for class certification.

The court's opinion contains also statements that might be read by some to mean that meal periods cannot be waived, that employers must ensure that employees take their meal periods, and that an employee who alleges he or she received inaccurate wage statements meets the requirement of showing actual injury if the statements are inaccurate and if he or she was confused about whether he or she was compensated for all hours worked.

In one bright spot for employers, the court affirmed the trial court's finding that plaintiff Jaimez was not an adequate class representative because, among other things, Jaimez lied on his employment application about his felony conviction and admitted in deposition his view that it is acceptable to lie in order to obtain or maintain employment

The Court of Appeal initially did not certify the opinion for publication. However, in response to requests by a number of plaintiffs' attorneys and associations of plaintiffs' attorneys, the Court of Appeal certified the opinion for publication on February 8, 2010.

As we previously reported here, on March 8, 2010, we filed with the California Supreme Court a request that the Court of Appeal's decision be depublished, and on March 15, 2010, DAIOHS USA, filed with the California Supreme Court a petition for review of the Court of Appeal's decision.

Today, the California Supreme Court denied both DAIOHS USA's petition for review of the Court of Appeal's decision and our separate request that the Court of Appeal's decision be depublished. Had either the petition for review or the depublication request been granted, the Court of Appeal's decision would no longer have been citeable as precedent.

With this latest action by the California Supreme Court, the unfortunate trend of California appellate court decisions generally favoring employees over employers continues.

Click here to download and to read a copy of the Court of Appeal's decision.