In the employment context, this would appear to allow employees to sue on behalf of other employees under the UCL without showing that the other employees had standing and get restitution. Of course, that’s kind of circular because if they have something to be given back (e.g. wages), they would appear to have standing. There are probably other instances I’m not thinking of yet. But what about the commonality of interest question? Does this moot Brinker’s class cert aspect? Not in theory, I guess—but it might in many actual cases. Once again I’ll plead for this Court to address these issues and make a clear rule when it decides that case.

I just thought I would add that this outcome is exactly in line with what Prop 64 proponents argued: that the only thing it did was eliminate Trevor Law Group-like situations. This ruling does not undo that. You still can’t set up front groups. You just need lead plaintiffs, same as you would anyway—just with anyone else in the class. And the Pyrrhic argument used to apply Prop 64 retroactively—that it didn’t change substantive rights—has come around to bite. If Prop 64 was supposed to go much further, it needed to be clearer in that regard, and, apparently, a political calculation about what could pass about what was clean enough to get through the courts was made. It’s up to you to judge if that calculation was proved wrong by this outcome.

I’m not sure that this is on the top of voter concerns right now, or that a case against tobacco companies is a good causus belli, but if the “mischief” does come back, send a new prop to the voters. Hell, that’s the only way we govern in California.

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Knapp writes that “[i]n recent years, defense lawyers have enjoyed a pro-business trend in California court decisions.  The Court of Appeal’s decision in Brinker Restaurant Corp., et al. v. Superior Court of San Diego, 2008 DJDAR 11267, which many of us have been watching closely, is no exception”

Knapp is correct. We lawyers have been enjoying a pro-business trend in California court decisions. This is because the more the law changes, the more litigation there is, and, so we lawyers enjoy it. That is not to say that employers themselves have enjoyed it. Sure, a poll of employers would probably find strong support for the Court of Appeal’s holding, but a poll asking whether they would prefer tougher easy to follow consistent rules over more lenient more complex rules would, I am sure, go the other way. We lawyers benefit as long as there is change and rue the day that we won’t be needed as much.

Of course the policy argument behind this controversy is exactly as Knapp states it:

The Court of Appeal’s holding focuses too narrowly (and too inflexibly) on a pointy-headed dictionary definition, ignoring the practical context in which these rights are exercised, or not. In a busy, time-constrained work environment, there are many natural disincentives to take breaks. Managers and supervisors, even while recognizing break rights, often look askance at them and the employees who dutifully take them.

Employees who work through their breaks, or take shorter breaks, may get more praise and credit than those who don’t. The dynamic is intensified in an uncertain economy and for many immigrant groups who can be exceedingly obedient and timid.

There is no denying that the last decades have seen a aggregation of consumer and shareholder power that has caused the real cost of the production of goods to drop by, among other things, forcing worker productivity up. At the same time, the primary medium for aggregating worker power, unions, has declined precipitously. Therefore, at least from a macro view, there is no denying that businesses face powerful incentives to keep workers from taking breaks. Those incentives have their source, ironically, in many of the same people that are the workers who shop at places like Wal-Mart or hold shares in a pension fund.

In the courts, worker power can be aggregated, of course, by class actions. As Knapp points out, the Brinker case effectively works to eliminate the financial incentives of plaintiff’s attorneys to litigate these cases. Of course all of this is a question of policy. The pure legal reading of the statute probably lies in the “pointy-headed dictionary definition,” as Knapp puts it. So, if the standard interpretive tools used on the Labor Code are applied, what should the rule be?

Certainly there are instances where reducing break’s to “make available” from “insured” will make this statutory right de facto non existent, contrary to the “liberal interpretation” rules. But there are other cases where the aggregation of power works in reverse. Can a business with a small number of employees withstand a wage/hour lawsuit with all of its non-exempt employees as a class? Some can’t survive even a single Plaintiff’s case. There are situations also where the abuse of this rule are not likely to exist or where the employees actually prefer them.

It seems to be these different circumstances are what the Wage Orders, when they had a funded panel to write them, were meant to address. I would conclude that there is no right answer on this, because either way it’s going to wrongfully impact somebody. Ideally, the Supreme Court will find a way to craft a rule that allows for the higher scrutiny of “ensure” in cases where there is evidence of a systematic attempt to eliminate the statutory right, but will allow for leniency in cases where that is not the case, and workers simply choose to flex their time.

It’s equally wrong to put all employers in the same category. In some instances, there is a strength mismatch without class aggregation, but in the cases where there is not, I believe it is bad policy to ignore that.

Unfortunately, this doesn’t work out to a simple clear bright line rule which is what I argued for above. But clarity has to give way to a just result. Striking that balance is the trick.

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This would seem to suggest that there is a majority of judges agreeing with the Brinker analysis, but we saw that in Murphy only to have the Supreme Court unanimously overturn them.

My personal view was that the arguments for “penalty” in Murphy were mostly political, and that given that they could bear either interpretation, the law generally is supposed to liberally favor employees. Obviously, we can discuss that at length another time. My point is, I don’t think the arguments are as brazenly political in this situation. It really is just interpreting what you have to do to provide a meal period.

If providing means enforcing, it means enforcing. But if it means provide and the rest is up to the employee, then this recent line of cases is right. Do I believe that a change to the new rule will make “wink-wink nod-nod” situations more likely? I’m not sure I do. I think those are already rampant. Those situations still are arguably not providing, so enforcement is still available.

Frankly, I think it’s silly that employers were subject to liability for providing meal periods but not kicking people out at gunpoint. There’s plenty of people who aren’t providing jack to deal with.

I’ll be interested to see where this goes.

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This. Helps. No. One.

Unacceptable.

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Another epic DLSE fail. The DLSE is, in my opinion, responsible for anyone that relied on their reckless and faulty memorandum in the wake of the Court of Appeal decision. Review granted 6-0.

Anyone got any motions pending?

UPDATE: I’m not sure what WageLaw is saying about “Brinker staying in place.”

UPDATE 2: They mean the memo will stay in place. If it does, it’s gone beyond reckless, to intentional misguidance on the law. As we know, the case is no longer citable precedent, arguably leaving Cicairos the only live case on point. CRC 8.1105(e)(1).

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I long for the day when at least the Appellate courts put their filings on-line.  If I chance upon a copy, I’ll post it.

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The docket is here.  I’m not sure if the Supreme Court will assign a new case number of not, but the old docket for the original Supreme Court case is here.

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Does the DLSE, who is apparently trying to help employers, really want to be responsible for the large number of small businesses that will rely on bad information and get stung here?

Clarity first, leniency second (and where appropriate).

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Of course, the DLSE wanted the first Brinker opinion published, even though it disagreed with existing DLSE policy.  The DIR did not reply to questions at the time.

So my question to the group here is this: the DLSE (at least at the top) is working hard to promulgate pro-employer policies.  But many employers seem to want (correctly, I think) clarity as much as leniency.  This seems to just be reducing clarity less than creating leniency.

Take the Kenneth Cole case as a model.  Long before the Supreme Court held that money awarded for missed meal periods and rest breaks were “wages” and not “penalties” the DLSE issued a “precedent decision” holding that they were penalties.  After an abortive attempt in Southern California, the appelate courts started weighing in.  The vast majority agreed with the DLSE.

But then the Supreme Court unanimously went against all of them. So, tell me—isn’t the DLSE, in its attempt to help employers, just sticking them in a giant spring-loaded trap?

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Wage Law keeps its analysis short due to a new arrival in the family. Mazel tov.  Their quick take: “if this had been the first appellate decision in California concerning wage and hour class actions, there might never have been a second wage and hour class action”

Robert Nuddleman: “There are still plenty of ways an employee could claim s/he was dissuaded from taking a required break.”

Shaw Valenza: “a major decision that could bring meal and break period class actions to a screeching halt”

Kent Sprinkle: Notes the Brinker court’s reliance on federal district court opinions.

It’s worth pointing out that the Employment Law Information Network noted recently that wage and hour lawsuits have increased again this year.  The judges don’t live in a bubble aren’t aren’t immune to considerations beyond the trial transcript.

All in all, I think there’s a bit of irrational exuberance in the reaction to this case.  First of all, I can’t believe it won’t be reviewed (and therefore depublished) by the Cal Supremes.  Second of all, this doesn’t mean that (1) a follow-up court of appeal won’t accept some kind of McDonnell Douglas-Burdine like analysis of the circumstantial evidnece of non-obvious discouragement, or that (2) this is the end of wage-hour class actions.

All of this site’s commentary on Brinker throughout its history is avaialble by clicking on the “Brinker” item on the billtrack bar to the left.

UPDATE: The Governor even had a statement on this case.

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This is a huge victory for employers on two counts.  First, employers no longer have to frog march their employees out to meal periods.  Second, class certification is not appropriate where the individual issue of unlawful prevention of taking a meal period prevails over the class-wide question.

The first part, of course, reverses the policy that employers had to ensure that employees took a meal period in response to concerns that passive allowance as opposed to active insistence would lead to “wink-wink nod-nod” abuses inconsistent with written policies.

The other side of the equation has to do with the proliferation of wage and hour class actions based on essentially unprovable facts leading to huge settlements.  With the legislature and executive in the hands of different parties, the Courts will be taking the lead on these issues for now, since no bill addressing this is likely to clear.  So, apparently, this Court of Appeal decided to put the brakes on both the class actions and the meal period cases.

But, don’t change that handbook yet.

This case was already headed to the Supremes before the Court of Appeal yanked it back.  No doubt it will be back there, and we’ll be on Brinker watch yet again.  I supposed tehcnically, until this case is certified for review, you don’t have to do anything other than make meal periods available.  But who knows how long that would be.

I would simply not change anything until this is resolved.

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Proving that it is now little more than a political spoil, Labor Commissioner Angela Bradstreet also sought publication of the opinion, even though it contradicted a long-standing DLSE position (taken when the GOP did not control the DLSE’s policies).  

The DIR has not returned multiple requests for comment on this matter.  The DIR assures me my request has been forwarded to “the appropriate person,” but I’ve heard nothing. 

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At the request of the Court of Appeal, review is granted on this court’s own motion. The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its opinion and reconsider the matter as it sees fit. The petition for review is denied as moot. The requests for publication are denied as moot. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ

Interesting. I was hoping for a meatier opinion. Maybe that’s what we’ll get.

UPDATE: This is also interesting. The Court of Appeal asked the Supreme Court to deny all of the requests for publication, but look who one of the parties requesting publication was:

That wouldn’t have anything to do with Miles Locker’s involvement as amicus curiae for the other side, would it? I’ll try and find out more.

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