Another Favorable Federal Decision for Employers on Meal Breaks
Yet another federal district court held that employers need only "provide" employees with meal breaks under California law by making them available, as opposed to ensuring that the breaks provided are actually taken. In Kenny v. Supercuts, Inc., 2008 WL 2265194 (June 2, 2008), District Judge Charles Breyer added another brick to the growing wall of favorable federal district court decisions resolving this ongoing debate about what it means to "provide" employees with meal breaks. The Kenny decision cites to the similar holding in White v. Starbucks, 497 F.Supp.2d 1080, 1088-89 (N.D. Cal. 2007), in addition to citing to the more recent decision of Brown v. Federal Express Corporation, et al., 2008 WL 906517 (C.D. Cal. Feb. 26, 2008). Both of these decisions were addressed in prior blog entries.
In Kenny, a putative class action, Judge Breyer denied the plaintiff's motion to certify a class action alleging that defendants failed to regularly provide their hair salon employees with 30-minute meal breaks as required by California law. Judge Breyer also rejected the plaintiff's argument that Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949 (2006) – plaintiffs' attorneys' preferred decision to cite in seeking certification of such claims – compelled a contrary conclusion. In Kenny, the plaintiff did not dispute that "on paper" defendants had a proper meal break policy. Instead, the plaintiff claimed that despite the official policy, defendants actually "have an on going practice of not providing meal breaks" and not paying the additional one hour of wages for every missed or shortened meal break. The plaintiff's time records reveal that she did not "clock out" for a full 30-minute meal break approximately 40 percent of the time her employer was required to provide her with a meal break. Defendants never paid the plaintiff for her missed meal periods, and the plaintiff offered evidence that defendants' pay system is not programmed to provide the one hour compensation for the missed meal periods.
Following a thorough discussion on the meaning of "provide" and the prior decisions and reasoning on the subject, Judge Breyer concluded that whatever "fails to provide" in the Labor Code means, it does not require an employer to ensure that an employee take a meal break. Therefore, an employer is not liable for "failing to provide a meal break" simply because the evidence demonstrates that the employee did not actually take a full 30-minute meal break. Having resolved this legal question for purposes of the plaintiff's motion, Judge Breyer held that it was apparent that the plaintiff had failed to identify any theory of liability that presented a common question to warrant class treatment. In rejecting each of the plaintiff's theories for class certification in turn, Judge Breyer reasoned as follows:
"[The plaintiff] attests that for a few months she was the only employee for one salon which made it impossible to take breaks. That theory – which may demonstrate a failure to provide a meal period – does not apply class-wide; it applies only to those employees who did not take breaks while working alone. And it applies to plaintiff for only a few months of the class period and there is no indication in the record that it is relevant to any other class members. Plaintiff's next theory – that the stores were too busy to give employees a meaningful opportunity to take breaks – requires an individual inquiry into each store, each shift, each employee. Perhaps the employee wanted to work through her meal break in order to earn more in tips or because she did not want to keep a valued customer waiting. On the other hand, the evidence might also show that in a particular case the store manager instructed an employee to help a customer rather than take a lunch break. Such an instruction could be viewed as the employer not 'providing' a meal break; however, it is an individual question that cannot be resolved class wide. Plaintiff's third theory – that defendants did not schedule breaks – fails as a matter of law as, whatever the law requires, it does not require an employer to affirmatively schedule meal breaks. There is no support in the statute or the case law for such a theory. Finally, plaintiff's contention that a review of the time records of the 68 declarants creates an inference of a company-wide practice that interfered with the employees' right to a meal break, also fails. The time records actually demonstrate the individual nature of the inquiry. Some of these employees clocked out for their full 30-minute meal break nearly all the time, some none of the time, and some part of the time. This disparity suggests that 'the availability' of meal breaks varied employee to employee, or at least store to store or manager to manager. Even plaintiff herself admits that she took her full 30-minute meal break 60 percent of the time."
Based on a review of the record, Judge Breyer found that individual issues predominated, and that liability could not be established without individual trials for each class member to determine why each class member did not clock out for a full 30-minute meal break on any particular day. Thus, the court found that the question of whether defendants failed to provide a class member with a meal break on a particular day is an individual question that can only be resolved with individual trials. Accordingly, the plaintiff's motion for class certification was denied.
The Kenny decision is positive for employers, not only because it adds weight to the growing trend that "provide" actually means "provide" as opposed to "ensure." Judge Breyer's analysis (and rejection) of the plaintiff's various theories also provides an excellent framework for opposing class certification in similar cases. Employers facing putative meal break class actions often face similar claims from employees alleging that they were "too busy" to take meal breaks or that employers "failed to schedule" such breaks. Under Judge Breyer's analysis, none of these theories supports class certification, since such allegations simply do not establish a common policy on the part of the employer that actually prevents employees from taking meal breaks, and thus class treatment is inappropriate.