After the renowned remand from the California Supreme Court, the
Hohnbaum plaintiffs in Brinker Rest. Corp. v. Superior
Court, 53 Cal. 4th 1004 (2012) sought to certify
meal period claims alleging that all California employees were
denied meal periods because Brinker's corporate meal period
policies were unlawful.
Plaintiffs argued that Brinker's corporate policies were
unlawful because (1) prior to 2002, it had no meal period policy at
all; (2) between 2002 and 2012, the policy failed to inform
employees of their right to take a second meal period; and (3) from
2002 to the present, the policy failed to accurately inform
employees of the specific times they were entitled to take meal
On DATE, the trial court certified the meal period class finding
that the legality of Brinker's corporate meal period policies
was a common question that predominated the litigation because
liability would turn on this question
alone. The court said, "Plaintiffs
ultimately may be able to prove that the policy is invalid"
and "should Brinker prevail in proving that its written
policies are valid, it will have the benefit of a judgment that
binds the entire class."
The court seemed to overlook entirely the notion that Brinker
can only be liable for meal period violations if employees actually
missed their breaks – irrespective of what the policy
says. Notably, the court refused to consider whether
employees actually received their meal periods, stating
"whether or not the employee was able to take the required
break goes to damages, and the fact that individual employees may
not have different damages does not require denial of the class
The court also rejected the idea that individualized issues
would necessarily predominate the litigation because employees may
miss meal periods for different reasons. Instead, the court
held that, "[t]he fact that individual employees might be able
to establish a violation of the law regarding meal periods by using
evidence unique to their particular circumstances –
e.g., the practices of an individual restaurant –
does not mean that a class action cannot be tried based on only
common evidence." The court held that the "focus is
on the plaintiffs' theory of
liability and proof, not on alternative approaches a
defendant might prefer were being pursued."
While this lower court decision has no precedential effect, it
is likely that other employees will follow these plaintiffs'
lead and allege that corporate policies – whether facially
lawful or not – violate California law in order to generate a
common question justifying class certification. And, should
trial courts adopt this court's reasoning, class actions will
invariably be much easier to certify.
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.