Class Certification is Appropriate Where Employer has No Break Policy -- Bradley v. Networkers International, LLC
The Fourth District Court of Appeal decision in Bradley v. Networkers International, LLC is significant because it directly addresses how the landmark Brinker decision should effect class certification of meal and rest break claims. (Bradley is also significant concerning misclassification of independent contractors but that warrants a whole separate post).
The employer in Bradley had never promulgated any policy specifically authorizing meal and rest breaks. Originally the trial court had denied certification and the appellate court had upheld the denial on the ground that it would be necessary to individually determine which workers had the opportunity to take breaks and whether they had voluntary chosen to waive the breaks. The Supreme Court issued a "grant and hold" and then remanded for reconsideration in light of its Brinker decision.
The Bradley Court explained upon remand that Brinker had changed everything. Under the Supreme Court's new rules the same record now required class certification of the meal and rest period claims. First, because Brinker clarified that employers have a legal obligation to affirmatively provide breaks, not having a policy is itself a common class-wide policy that warrants certification.
Networkers argues Brinker is not controlling because in Brinker the plaintiffs challenged an express meal and break policy whereas here plaintiffs are challenging the fact that the employer's lack of a policy violated the law. This is not a material distinction on the record before us. Under Brinker and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.
Secondly, the lack of an affirmative meal and rest break policy effectively takes the issue of "waiver" off the table, removing it as an obstacle to certification as well.
[A]s Brinker made clear, an employer is obligated to provide the rest and meal breaks, and if an employer does not do so, the fact that an employee did not take the break cannot reasonably be considered a waiver. “No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.”
Prior to Brinker many employers got by with arguing that they did not prohibit breaks and that it was therefore up to their workers to take meal and rest breaks and that they could not prove that they had not voluntarily chosen to take breaks. Bradley is crystal clear in holding that this is no longer an option.
Under Brinker, the failure to implement and enforce an affirmative break policy (including records of whether the breaks were actually taken), is a substantive violation of the employer's legal duty under the Labor Code. Under Bradley this substantive violation will also be certified as a class action. In short, an employer without an affirmative break policy is now officially a sitting duck.