(August 26, 2009) The California Chamber of Commerce has filed a “friend of the court” brief urging the California Supreme Court to affirm an appellate court ruling holding that employers need only provide and not ensure meal or rest periods are taken under California law.

CalChamber argues that meal or rest period plaintiffs are precluded from being certified as a class because determining whether such period was “made available” requires numerous individualized analyses; such analyses are inappropriate for being judged on a class-wide basis.

CalChamber believes that this interpretation of the Labor Code follows the plain language of the law, other authorities, and sound policy considerations for California businesses that plaintiffs’ meal or rest period claims are not amenable to class treatment.

Also joining in filing the “friend of the court” brief is the U.S. Chamber of Commerce.

Providing Meal Periods

The CalChamber believes that in the case of Brinker Restaurant Corporation et al., v. The Superior Court of San Diego County, the appellate court correctly construed “provide” to mean “make available” in keeping with its plain meaning, commonsense principles of interpreting the law, and the weight of existing authority and public policy considerations.

In its brief, CalChamber pointed out that the appeals court’s construction of “provide” draws support from nearly every case to have squarely addressed the issue.

Virtually all federal cases that have done so, for example, hold that under the Labor Code and wage orders, employers need only provide meal periods—make them available—rather than ensure that they are taken.

The brief also points out that cases outside the meal-period context have overwhelmingly construed “provide” consistent with its plain meaning to mean “make available.”

Certifying a Class

The appeals court’s correct interpretation of “provide” leads to the inescapable conclusion that certifying the proposed class of the plaintiffs in the Brinker case would run afoul of California law, not to mention the due process clauses of the California and federal constitutions.

The essential question of why a given employee may not have taken a meal period on a particular day cannot be answered on a class-wide basis, CalChamber points out, because resolving each claim would require individualized proof from the employees and individualized rebuttal and defenses from the employers.

CalChamber illustrates that each individual employee would have to prove that he/she was prevented from taking his/her meal period, and the employer would then be entitled to respond with evidence that it made the meal period available to be taken, but for whatever reason, the employee declined to take that meal period. Such evidence would be specific to each individual employee, and to each individual meal period, and could not be determined on a class-wide basis without abridging an employee’s due-process rights.

Individualized Defenses

Even if the California Supreme Court were inclined to reverse the appeals court’s decision on the meaning of an employer’s obligation to “provide” a meal period, a proposed class still should not be certified, the CalChamber argued. If employers must “ensure” that employees take their meal periods, employers, such as in this case, would still have a right to assert certain defenses that can be resolved only on an individualized basis, CalChamber explained in its brief.

Such defenses include an employee’s statutory waiver of his/her meal period, the employee’s failure to exercise ordinary care in taking the meal period, and the argument that any missed portion of a meal period was “de minimis” and not deserving of an entire meal-period premium.

CalChamber’s brief explained that allowing classes to be certified would prevent defendants, such as the one in this case, from asserting such defenses effectively when a defendant’s due-process rights have been violated. Such a dramatic change in the law also would run afoul of well-established principles of California class-action procedure.

Once all interested parties have submitted written briefs, the California Supreme Court may set the case for oral arguments at any time.

Read the brief.

Staff Contact: Erika Frank