The Court of Appeal affirmed the denial of class certification in a meal and break case. The ruling is against a recent tide of class action opinions. The opinion, though is good not only about class certification, but about explaining meal break rules.
The Court of Appeal explained the current state of California law on meal breaks in refreshing, plain English, as follows:
Under the make available standard, the employer merely must make meal breaks available. That is, the employer must relieve the employee of all job duties for the meal break, and then the employer may allow employees to decide for themselves whether to take the break. This make available standard thus allows an employee to choose to skip the break and, for instance, to leave work early instead. If the employer provides a break opportunity to the worker, the employer incurs no liability if the employee then decides to skip or delay the break.
Walgreens employees sometimes did decide to skip or delay breaks. One employee explained, for instance, that “I generally take my lunch breaks, but about once a week I will skip lunch because I want to be able to leave work early.” Another testified that, “[e]ven though it has always been Walgreens’ policy to provide a 30-minute meal period, I preferred to skip mine and instead leave early. If I am not hungry, which is typically the case, I do not need a meal period, especially since it is unpaid time.” There was other similar evidence about skipping or delaying breaks.
Under the alternative ensure standard, an employer must ensure employees take breaks. That is, an employer must make workers take meal breaks whether they want them or not. Employers are liable for missed meal breaks even when workers choose to skip their breaks because the ensure rule makes breaks mandatory.
The Court of Appeal then explained why the "make available" standard is not amenable to class certification:
Meal break classes are harder to certify under a make available test because the fact of a missed break does not dictate the conclusion of a violation (and thus employer liability). Rather, under the make available standard you additionally must ask why the worker missed the break before you can determine whether the employer is liable. If the worker was free to take the break and simply chose to skip or delay it, there is no violation and no employer liability. This make available test thus can make analysis of break violations more complex than under the ensure standard.
The plaintiff, curiously, argued that Walgreens management's emails insisting that employees take meal breaks supported class certification. The trial court disagreed and so did the Court of Appeal:
“Just an FYI . . . if anyone is on this list, they did not receive a lunch. Please, you must talk to the assistant managers and find out why. . . . please make a big deal about this . . . remind employees that it is their job to ask for a break or lunch if they did not receive it, but also remind the Managers on duty that they must have a break schedule created for every shift . . . there is no negotiation about this . . . there is no excuse not to give a break or lunch . . . look at your schedule and make sure you have the right people at the right time."* * * *
This email evidence cut against Collins’s motion. “[A]n employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1040.) These emails, however, do not show Walgreens pressuring employees to omit breaks. They show the opposite: Walgreens pressuring store managers to ensure employees took meal breaks. The emails show respect for workers’ rights, not pressure against them.
Here's a part of the opinion that makes me want to apply for State Bar Judge. The Court of Appeal exposed the plaintiff's attorney's practices of drafting form declarations containing information that contradicted what employees had told the plaintiffs' lawyers, which the employees then signed anyway:
Collins presented 44 form declarations. They were mostly identical. Each one
stated that on some occasions “meal periods were not made available to me.” The ostensible reason was “we were short-handed and I was required to work through my meal period.”
The trial court gave the declarations no weight because they were unreliable. Most deposition witnesses recanted their declarations to some degree or entirely. The prevalence of falsity in the declarations raised questions about how Collins’s lawyers had created these declarations in the first place. * * *
The trial judge repeatedly said these declarations “appalled” him, and he told counsel, “You know better.”
The trial court was “especially troubled” that, once deposed, so many witnesses recanted their declarations.
Form declarations present a problem. When witnesses speak exactly the same words, one wonders who put those words there, and how accurate and reliable those words are.
There is nothing attractive about submitting form declarations contrary to the witnesses’ actual testimony. This practice corrupts the pursuit of truth.
It was not error for the trial court to give these unreliable declarations no weight.
- Ensure your meal period policies are lawful and require employees to take meal periods. Do not make them "optional" because of the "make available" legal standard. If they do not take them, contrary to company expectations, that will not result automatically in liability and will help thwart class certification.
- Follow up on policies by auditing compliance and ensuring management and employees understand, in writing, that they are expected to comply with the policy, not wink at it.
To defense lawyers:
- Depose declarants and find out how they filled out declarations that are too good to be true. Do not accept form declarations that result in mass, identical testimony.
This case is In re Walgreens Overtime Cases and the opinion is here.