Break Time ...

Safeway v. Superior Court, No. B255216 (D2d4 Jul. 22, 2015)

This is yet another class cert decision that turns on the Supreme Court’s 2012 decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012). The class is huge—like 200,000 grocery employees over five-and-a-half years. The theory is that Safeway had a consistent practice of not paying the premium wages required under Labor Code § 226.7 “when required,” i.e., whenever it caused the employee to miss a meal break. It’s pretty clear that the top-level theory is certifiable. If a company has a policy of not doing something it’s required to do under wage and hour law, that usually falls within the Brinker standard. The real point of contention is that a premium wage is only owed if the employee doesn’t actually get her break.

Does that mean that, in the absence of a policy not to allow breaks—no one contends that existed—the court will need to do an employee-by-employee assessment of whether breaks were missed? The court of appeal says no. All that has to be shown is a significantly common injury that is subject to class-wide proof. Here, a sampling of Defendants’ payroll records showed that it never paid premium wages under § 226.7, and that there were numerous instances where meal breaks were not clocked during shifts of five or more hours. (Indeed, plaintiffs’ expert said there were potentially tens of millions of them, based on statistical extrapolation.) Although that wouldn’t make Defendant liable per se—Brinker settled the point that an employer isn’t be liable if a meal break is offered but not taken—the records warrant a rebuttable presumption that the breaks were unlawfully withheld. Given that these points are subject to class wide-proof, the court holds that the trial court did not err in certifying a class.

Affirmed.