The world of wage & hour class actions has, at least for the moment, radically changed. In Brinker Restaurant Corporation, et al. v. Hohnbaum, et al. (July 22, 2008), the Court of Appeal (Fourth Appellate District, Division One) the Court of Appeal issued the first construction by a Court of Appeal in California on the elements of a number of wage & hour claims, including meal break claims. But despite recognizing that "mandatory rest and meal breaks have 'have long been viewed as part of the remedial worker protection framework' designed to protect workers' health and safety (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105, 1113 (Murphy)), the Court of Appeal concluded that employers are not obligated to ensure that meal breaks are taken. Rather, the employer must merely provide the opportunity for the break.
Cutting to the chase, the Court of Appeal held:
“With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment. Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock. Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class.
(Slip op., at pp. 4-5.)
I will post more later on this opinion, after I have chance to evaluate it further. For now, courts with pending meal break, rest break and off-the-clock claims should expect for the inevitable onslaught of paper that this will generate.