Court of Appeal Issues Holding(s) On (Post Brinker) Employer Break Policies and Common Proof

The California Court of Appeals - Second District - has held that if an employer has a break policy that is compliant with the applicable wage order but silent as to certain requirements, the omission of those requirements does not support class certification in the absence of evidence of a uniform unlawful policy or practice. Further, where an employer has a uniform written break policy that on its face is unlawful, but in practice the policy has not been applied to company employees, it is not nonetheless suitable for class certification. (See, Cacho v. Eurostar, Inc. - filed Dec. 4, 2019, publication ordered Dec. 24, 2019 - 2019 S.O.S. 4460.)

Cacho v. Eurostar presents the question of whether in the wake of Brinker, if the employer has a break policy (here, a meal break policy) that is compliant with the applicable wage order but silent as to certain requirements, does the omission of those requirements support class certification in the absence of evidence of a uniform unlawful policy or practice? Similarly, where an employer has a uniform written break policy that on its face is unlawful (here, a rest break policy), but in practice the policy has not been applied to company employees, is it nonetheless suitable for class certification? The answer to both questions is no. Although trial courts must be wary of analyzing evidence of wage and hour violations at the class certification stage in a manner that prejudges the merits, they may properly consider the evidence to determine whether classwide liability can be established through common proof. Because plaintiffs failed to show they could prove Eurostar’s liability for meal break, rest break, and off-the-clock violations by common proof at trial, the trial court did not abuse its discretion in denying class certification.


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