This story was originally published by our California affiliate, The Recorder.
Employers got most of what they wanted in the long-awaited Brinker wage-and-hour ruling issued Thursday by the California Supreme Court. But workers won some victories, too, and the court appeared to stick up for class actions more broadly, in contrast to some recent U.S. Supreme Court rulings.
In Brinker Restaurant v. Superior Court (Hohnbaum), the court ruled that employers need only permit meal breaks for employees not ensure that they actually get taken. “What this ruling says, in essence, is that employers don’t have to babysit employees,” management-side attorney Stephen Hirschfeld, who was not involved in the case, said in an email.
The court further rejected worker arguments that meal breaks must come no more than five hours apart. That piece of the ruling was surprising, given that employers had been so worried about the court’s signals during oral argument that they asked, and were permitted, to file supplemental amicus curiae briefing on whether a tighter rule would apply prospectively only.
“I don’t know, but I wonder if the court changed its mind after oral argument,” said Paul Hastings partner Paul Cane Jr., whose firm filed one of those amicus briefs.
Although management attorneys all over the state were cheering the ruling, plaintiffs co-counsel Michael Rubin was equally pleased. The Altshuler Berzon partner said the strict liability “police-the workplace” standard feared by employers was never a paramount concern for his side. “What we asked for is precisely what the court gave us” clear guidance that employers may not pressure or coerce employees into forgoing their meal periods, and the suggestion that employers would bear the burden of proving that employees skipped meal breaks voluntarily.
Rex Heinke of Akin Gump Strauss Hauer & Feld argued the case for Brinker Restaurant Corp.
The court ruled that workers are entitled to rest breaks more frequently than employers had contended. And the court gave trial judges more latitude to certify class actions than the court of appeal had in the case. “A trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision,” Justice Kathyrn Mickle Werdegar wrote.
Rubin said the ruling “reaffirms that traditional standards under California law remain” notwithstanding recent U.S. Supreme Court rulings curtailing class actions.
Werdegar’s opinion was unanimous, which was unexpected given that the court has been wrestling with Brinker for 3 1/2 years, and that it took its full 90 days to issue the opinion in the wake of post-argument briefing.
Werdegar, though, did issue a separate concurrence to her own opinion which emphasized that class actions remain viable methods for resolving wage-and-hour claims. “We have long settled that individual damages questions will rarely if ever stand as a bar to certification,” she wrote, adding that “representative testimony, surveys and statistical analysis all are available as tools” to help determine the extent of employer liability.
Only Justice Goodwin Liu signed Werdegar’s concurrence, however, and the First District Court of Appeal emphatically rejected the representative testimony approach in a published opinion earlier this year. The Supreme Court hasn’t decided yet whether to grant review in that case.
Thursday’s ruling in Brinker turns almost exclusively on California law, but is expected to reverberate throughout the country.
“Its implications reach beyond just businesses headquartered and doing business in California to any national company with a presence in the state,” said Hirschfeld, of San Francisco’s Curiale Hirschfeld Kraemer.
Said Rubin: “I’m delighted to see the employment bar seeing this as a plus. It’s good to see everyone shouting that they won.”
