One question raised since the Supreme Court handed down Brinker is the extent to which lower courts will follow the concurring opinion of Justices Werdegar and Liu, which elaborates on both the Labor Code and the class certification issues addressed in Justice Werdegar's majority opinion.
In a recent order, Judge Dean Pregerson of the U.S. District Court for the Central District of California found the concurring opinion persuasive on at least the former point.
First, Judge Pregerson summarized the Brinker majority decision regarding employers' legal obligations with respect to meal periods:
The California Supreme Court recently clarified the law regarding meal periods, in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 (Cal.2012). Relevant here, the court concluded that “an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” Id. at 338. The court further explained that a “worker must be free to attend to anypersonal business he or she may choose during the unpaid meal period.” Id. at 340 (quoting Cal. Dep't of Indus. Relations, Div. of Labor Standards Enforcement, Opinion Letter No.1991.06.03, at 1). Accordingly, the meal period requirement is only “satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.” Id.
The court also emphasized that, although employers are not required to ensure that employees do not voluntarily choose to work during a meal period, “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” Id. at 343 (citing Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 962–63, 35 Cal.Rptr.3d 243 (2005) (finding potential meal period violations where “defendant's management pressured drivers to make more than one daily trip, making drivers feel that they should not stop for lunch”); Jaimez v. DAIOHS USA, Inc., 181 Cal.App.4th 1286, 1304–05, 105 Cal.Rptr.3d 443 (2010) (finding potential violations based on evidence that scheduling policy “made it extremely difficult” for employees to both timely complete deliveries and take all required breaks); Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 638 (S.D.Cal.2010) (finding potential violations given evidence of informal anti-meal-period policies “enforced through ‘ridicule’ or ‘reprimand’ ”)).
In other words, the “wage orders and governing statute do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.” Brinker, 133 Cal.App.4th at 343, 34 Cal.Rptr.3d 635. Thus, as the court summarized: “The employer satisfies [its meal period] 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.
Ricaldi v. U.S. Investigation Services, LLC, 2012 WL 1900660, *2-*4 (C.D. Cal. May 25, 2012).
Judge Pregerson then had this to say regarding the concurring opinion:
Finally, in a concurring opinion joined by Justice Liu, Justice Werdegar emphasized that relevant IWC wage orders also require employers to record meal periods. Id. at 353 (Werdegar, J., concurring) (citing Cal.Code Regs. tit. 8, § 11050); see alsoCal.Code Regs. tit. 8, § 11040(7)(A)(3) (same). The Justices therefore concluded that the burden is on the employer to show that it relieved an employee of all duty for a meal period, if the employer fails to record the meal period as required. ....
As an initial matter, the court notes its agreement with Justices Werdegar and Liu that it is the employer's burden to rebut a presumption that meal periods were not adequately provided, where the employer fails to record any meal periods. Otherwise, employers would have an incentive to ignore their recording duty, leaving employees the difficult task of proving that the employer either failed to advise them of their meal period rights, or unlawfully pressured them to waive those rights. See Brinker, 133 Cal.App.4th at 353 & n. 1, 34 Cal.Rptr.3d 579 (Werdegar, J., concurring) (citing Cicairos, 133 Cal.App.4th at 961, 35 Cal.Rptr.3d 243 (“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.” (internal quotation marks omitted))). Here, as mentioned, there is no dispute that USIS failed to record any meal periods.
Id. at *4, *5 (empahsis added). The order goes on to deny the defendant's summary judgment motion.
While the order does not address the class certification aspects of Brinker (either the majority or concurring opinions), there is no reason not to expect that judges will find the concurrence persuasive on class certification as well. After all, what non-binding authority could be more persuasive than further elaboration by Justice Werdegar, author of not only the Brinker majority opinion, but also Sav-on, Baycol, Fireside Bank, and Lockheed Martin -- five of the nine landmark class certification decisions issued by the Supreme Court since 2000?
UPDATE: The post now includes a link to Judge Pregerson's order.