Despite the effort of the California Supreme Court to set forth definitive guidelines on meal and rest period obligations in last year’s seminal Brinker Restaurant decision, employees continue to bring numerous class actions alleging their employers have a common policy or practice of unlawfully denying meal and rest breaks.  By suing on behalf of a class, plaintiffs’ counsel seek to increase the potential damages in a lawsuit and thus exert more pressure on employers to settle rather than risk an adverse judgment. 

While some employees have succeeded in obtaining class certification, in the aftermath of the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which emphasized a rigorous standard for class certification, some courts have denied class certification where there is insufficient evidence that all of the employees in the putative class were treated unlawfully. 

Roth v. CHA Hollywood Medical Center is an example of how the application of Dukes can result in denial of class certification in the missed meal and rest breaks cases that continue to plague employers.  The plaintiffs in the case claimed the hospital failed to provide nurses two legally required meal periods and three rest breaks when they worked 12 hour shifts.  They alleged the hospital was understaffed, did not employ adequate relief nurses, and failed to schedule breaks, allegedly resulting in all nurses being unable to take their breaks without jeopardizing patient care.  They further claimed the hospital’s rest break policy was unlawful because it failed to mention that nurses could take one rest break for every four hours worked or “major fraction thereof,” as the law requires.  The nurses also alleged the hospital had a policy requiring (rather than permitting) nurses to sign waivers of one of their two meal periods per day, rendering the waivers unlawful.  Finally, the nurses argued that breaks were frequently interrupted, depriving them of the required breaks. 

The allegations in Roth are commonplace in California, where state law requires employers to pay one hour’s pay when meal or rest breaks are not provided.  In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court clarified the employer’s meal and rest break obligation.  The court rejected the employees’ claim that in order to meet their legal obligation to “provide” a meal period, employers were required to ensure employees actually stopped working for 30 minutes.  The court held that the obligation is satisfied if the employer “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break.”  The court also held that to certify a class, employees must show a common unlawful policy or practice, such as a rest break policy that did not authorize rest breaks for “each major fraction of” four hours of work.  As a result, plaintiffs now frequently assert that their employer has uniform unlawful policies or practices to justify class certification for alleged violations of California law. 

Based on Dukes and Brinker, the plaintiff¹ in Roth had to show: (1) her claims in the case were capable of resolution on behalf of the entire putative class of nurses (“commonality”), and (2) common factual or legal questions predominated over individualized inquiries (“predominance”).  The federal district court found plaintiff failed on both fronts.

First, the court found the definition of the two sub-classes proposed by plaintiff, which included  1) all nurses “who did not receive at least three duty-free ten minute rest breaks during the court of a 12-hour shift” and 2) all nurses “who did not receive mandated meal periods….,” would require the court to assess the merits of the individual claims to determine who is a member of each class.  Thus, these class definitions created “an unworkable, cart-before-the-horse problem.” Before it could grant certification of the class and authorize notice of the lawsuit to class members, the court would have to determine the ultimate questions -- whether the employer “provided” each putative class member with proper meal breaks under Brinker and whether a putative class member “received” at least three rest breaks. 

Second, the court held, the plaintiff could not prove “a common factual thread that ties together all putative class members’ claims.”  She did not establish a uniform employment policy or practice that precluded mandated meal or rest breaks because the sworn testimony showed a variety of experiences:  while some attested to inadequate coverage to take breaks, others declared they used a buddy system or some other method that enabled them to take breaks.  Indeed, even the named plaintiff admitted that most of the time the hospital was fully staffed and she only missed her meal break twice in eight years.  As to rest breaks, the testimony was similarly divided, with some attesting they  always taking breaks, others conceding they voluntarily chose to not take all of their breaks and still others complaining of frequent interruptions.  The court concluded that determining whether the hospital violated the law “would require an individual determination of whether a particular nurse was too busy, had no coverage, or both for each rest and meal break to which she was entitled.” 

Distinguishing the situation where an employer requires all employees sign a waiver of a second meal period, the court refused to find a common question based on the meal period waivers signed by many nurses.  The court noted that at least 28 employees refused to sign a waiver, “squarely contradict[ing] [the plaintiff’s] condition-of-employment assertion.”

The final death knell to the putative class was the inability to show that common issues predominated, as required by the recent U.S. Supreme Court decision in Comcast Corp. v. Behrend. The court rejected the plaintiff’s argument that, because all of the claims were based on the same employment practices, common liability issues would predominate. On the contrary, the court held liability could only be assessed by determining “if, when, and why a nurse did or did not take all mandated breaks,” and “one would have to interview each class member to determine whether she missed breaks and the circumstances surrounding each discrete occasion.”  Thus, the court concluded, because the claims would have to be determined individually, individual litigation and not a class action was the superior method for adjudicating the claims.

The Roth decision is encouraging for employers because it rejects the oft-made argument that the experience of a few employees can be assumed to represent the experience of all, even when others attest to dramatically different circumstances.  The court’s analysis underscores the continuing importance of both providing employees with written policies that comply with state law requirements regarding meal and rest breaks and educating managers on these policies to minimize the potential for common practices that undermine the legally-compliant written policies.  Finally, the decision also highlights the value of sworn testimony from employees who provide a very different picture from the named plaintiffs regarding the employer’s compliance with the applicable law.