Poorly Written Meal and Rest Break Policies Are Not Enough to Obtain Class Certification

Poorly Written Meal and Rest Break Policies Are Not Enough to Obtain Class Certification


In a now-famous decision, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, the California Supreme Court clarified an employer’s meal break duty as follows:

To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.

(Id. at pp. 1040–1041.)  The California Supreme Court rejected the concept that employers need to “police” meal breaks.   As a result of this decision, an employee cannot establish a meal break violation solely by showing that he or she worked more than five hours straight.  The employee will also have to show that the employer either did not relieve the employee of his or her duties, or that the employer prevented the employee from taking a break.

Although meal breaks were at issue in Brinker, courts have interpreted Brinker to have established the standard for both meal and rest breaks.  (See Cole v. CRST, Inc. (C.D. Cal. 2016) 317 F.R.D. 141, 144 [“While Brinker directly addresses employers’ obligations regarding meal breaks, it interprets language in IWC wage orders that apply to meal and rest breaks both.”]; Cleveland v. Groceryworks.com, LLC (N.D. Cal. 2016) 200 F.Supp.3d 924, 953 [“Therefore, an employer is not liable for failure to provide rest breaks if it authorizes and permits an employee to take his or her rest break and the employee—absent coercion or encouragement on the part of the employer—foregoes his or her rest period.”].).

Cacho v. Eurostar, Inc.

A recent case from California’s Second District Court of Appeal opined on how Brinker’s meal and rest break standards applied in the context of class certification.  In Cacho v. Eurostar, Inc. (2019) 43 Cal.App.5th 885, two employees filed a lawsuit alleging, among other things, meal and rest break claims against Eurostar (which ran a retail shoe store).

Eurostar had a written meal policy that said that if an employee worked at least 5 hours, he/she was entitled to a 30-minute meal break and if the employee worked at least 10 hours, he/she was entitled to a second meal break.  Plaintiffs argued that the meal break policy violated California law because it did not specify that the employee was entitled to take a meal break before working more 5 hours or more.  Plaintiffs’ expert presented evidence that around 5.6% of shifts were 5 hours or more before a meal break was taken.  Eurostar countered that, in practice, the supervisors would always schedule a meal break within the first 5 hours of work and that employees were not instructed to miss meal breaks or take late meal breaks.

Eurostar also had a written rest break policy.   Plaintiffs claimed that Eurostar too violated California law, as written, because the initial policy said that employees were entitled to rest beaks if they worked shifts of four hours or more (whereas Brinker held that a rest break is required if an employee works a shift of 3.5 hours or more). This policy was corrected in 2013 to track Brinker’s 3.5-hour language.   The plaintiffs presented evidence that on occasion, workers would work shifts of 3.5 hours but less than four.

The trial court denied certification, holding that the plaintiffs had submitted insufficient evidence of commonality.  On appeal, the Second District Court of Appeal described the legal issues as follows:

This case presents the question whether in the wake of Brinker, if the employer has a break policy (here, a meal break policy) that is compliant with the applicable wage order but silent as to certain requirements, does the omission of those requirements support class certification in the absence of evidence of a uniform unlawful policy or practice? Similarly, where an employer has a uniform written break policy that on its face is unlawful (here, a rest break policy), but in practice the policy has not been applied to company employees, is it nonetheless suitable for class certification? The answer to both questions is no.

(Id. at p. 890.)

The court of appeal held that although Eurostar’s written policy did not specify when a meal break must be taken (before the 5th hour of work), this alone was not enough to establish a common practice of denying meal breaks because there was evidence that Eurostar supervisors were instructed to nonetheless schedule breaks before the 5th hour of work.  It should be noted that the court of appeal gave little weight to the plaintiffs’ statistical evidence since it was not followed up with evidence of a common practice that employees were actually prevented from taking timely meal breaks.  So, the meal break policy’s omission that employees should take their meal break before working five hours or more was not enough since there was no common practice of providing late meal breaks.

With respect to the rest break claim, the court of appeal held that even though the pre-2013 rest break policy conflicted with Brinker’s requirement that employees be provided rest breaks if they work shifts of 3.5 hours or more, there was still no common proof of any practice of only providing rest breaks if the employees worked shifts of four hours or more.

The decision can be summarized by the following passage: “As discussed, the existence of a uniform unlawful policy does not necessarily mean the employer has liability for violations that can be demonstrated with common proof.”  (Id. at p. 912.)

The Cacho decision is well-reasoned.  What is most important is not what a handbook says, or does not say, about meal or rest breaks, but whether the employer is actually providing meal and rest breaks in accordance with California law.  With respect to class certification, what is most important is whether a plaintiff can establish violations with common proof.  Although a meal or rest break policy can apply to all workers, it does not alone establish violations.


Although this is a good ruling for employers, they should not take this decision to mean that their wage and hour policies are not important.  It could very well be that supervisory employees read and implement written policies exactly as written.  If so, any discrepancy between the policy and California law could end up creating substantial liability for employers.  Tyson & Mendes has attorneys highly experienced and skilled in wage and hour law. Please contact us if you have questions about your wage and hour policies or practices and how they could be improved.

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