The class action “cottage industry” seems to be healthy. Last year the California Supreme Court decided Brinker Restaurant Corp. v. Superior Court and held that an employer must only provide its employees with statutorily mandated meal and rest periods; the employer is not required to ensure that the employees actually take the time off. The Brinker case was filed as a class action on behalf of employees working for a company which operated a number of restaurant chains in California. The Supreme Court held unanimously that California law only requires employers to provide employees with uninterrupted 30 minute duty free periods during which employees are at liberty to come and go as they please and are not required to perform any work. Similarly, the Supreme Court held that employees are entitled to 10 minutes of rest for shifts from 3.5 to 6 hours in length, and to another 10 minutes of rest for shifts lasting from 6-10 hours. However, the Court held, the employer is not required to ensure that no work is done during these time frames.

Now, the California Court of Appeal has issued two decisions which demonstrate that the class action phenomenon is alive and well. Both decisions were issued this May, one from the Court of Appeal in Sacramento and the other from the Court of Appeal in Santa Ana. In the Sacramento case, Bluford v. Safeway Stores, Inc., the Superior Court denied a motion to certify classes of employees claiming that Safeway had not provided them with adequate rest periods or meal periods, as well as sufficiently itemized wage statements. In the Orange County case, Faulkinbury v. Boyd and Associates, Inc., the Superior Court also denied motions to certify classes of security guards who claimed that Boyd denied them off duty meal breaks and rest periods and failed to include certain reimbursements and an annual bonus payment in calculating their hourly rate of overtime pay.

In both cases the Court of Appeal reversed the trial judges and ordered that the classes be certified. The appellate court agreed with the plaintiffs that “common issues” predominated over individual claimant issues and therefore the cases should appropriately be considered on a class action basis. Safeway had factual issues to deal with in the case including a complicated compensation system set forth in its labor agreement with the Teamsters union. In Faulkinbury the employer’s main problem was that it required all of its security guard employees to sign agreements at the commencement of their employment waiving off duty meal and break periods. The company’s position was that the employees’ duties were such that duty free meal and rest periods were not possible. The Court of Appeal disagreed here as well and ruled that, as in Bluford, class certification should have been granted.

The employment litigation class action world is thus alive and healthy. All employers, in both the public and private sectors, should review their employment practices to ensure that they are in compliance with the law. Cases against public sector employers are most likely to be brought in federal court because California’s wage and hour laws generally do not apply to governmental agencies. Nonetheless, both public and private employers are at risk of being sued by class action lawyers on any number of theories. For example, in the Boyd case, the employees were paid reimbursements for the costs of cleaning and maintaining their uniforms and for the cost of gasoline they purchased for work related driving. The plaintiffs argued, and the court agreed, that the company should have included those allowances in calculating the employees’ regular rate of pay for use in calculating overtime compensation. Both public and private sector employers are subject to suit on claims that the regular rate of pay was not lawfully calculated in determining the applicable hourly rate for overtime hours worked.