Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008)

In this case, the Court of Appeal decided a number important issues concerning employee class action claims for alleged rest break violations, meal period and “early lunching” violations and off-the-clock/“time shaving” violations. The Court of Appeal determined the claims were not amenable to class treatment because individual issues predominated and, accordingly, granted the employer’s petition for a writ of mandate compelling the trial court to vacate its order certifying the class action. Among the Court’s holdings were the following: (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, employers 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 such rest periods 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, employers need only provide meal periods and need not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, an employer can only be held liable for employees’ working off the clock if it knew or should have known the employees were doing so. (The Brinker decision was quickly followed by a laudatory press release from the governor and a memorandum to the DLSE staff from the labor commissioner stating that the opinion is binding on the DLSE and should be applied in all pending matters. Cf. Mark v. Spencer, 166 Cal. App. 4th 219 (2008) (plaintiffs’ attorney’s failure to disclose fee-splitting arrangement with another attorney in a class action barred his subsequent action against former co-counsel to enforce the agreement); Hoffman v. Construction Protective Services, Inc., 541 F.3d 1175 (9th Cir. 2008) (trial court properly excluded evidence of damages as a sanction for failure to disclose damage calculations under FRCP 26(a)).