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1004
[No. S166350. Apr. 12, 2012.]
BRINKER RESTAURANT CORPORATION et al., Petitioners, v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;
ADAM HOHNBAUM et al., Real Parties in Interest.
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1005
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1006
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1007
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1008
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1010
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1011
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Counsel
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Johanna R. Shargel;
Morrison & Foerster, Karen J. Kubin; Hunton & Williams, Laura M. Franze,
M. Brett Burns and Susan J. Sandidge for Petitioners.
Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez and Michael D.
Schlemmer for TechNet as Amicus Curiae on behalf of Petitioners.
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Manatt, Phelps & Phillips, Yi-Chin Ho, Michael M. Berger, Benjamin G.
Shatz and Andrew L. Satenberg for Chinese Daily News, Inc., as Amicus
Curiae on behalf of Petitioners.
William B. Sailer; Paul, Hastings, Janofsky & Walker, Paul Grossman, Paul W.
Cane, Jr., Katherine C. Huibonhoa and Rishi Sharma for California
Employment Law Council as Amicus Curiae on behalf of Petitioners.
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Julian W. Poon, Kirsten R.
Galler, David S. Han, Blaine H. Evanson; National Chamber Litigation Center,
Inc., Robin S. Conrad and Shane Brennan Kawka for Chamber of Commerce of
the United States of America and California Chamber of Commerce as Amici
Curiae on behalf of Petitioners.
Law Office of Robin L. Unander and Robin L. Unander for California
Automotive Business Coalition as Amicus Curiae on behalf of Petitioners.
Lawrence Foust; Ballard Rosenberg Golper & Savitt and Christine T. Hoeffner
for Childrens Hospital Los Angeles as Amicus Curiae on behalf of Petitioners.
Littler Mendelson, Julie A. Dunne, Lena K. Sims, Matthew S. Dente, Richard H.
Rahm and Allan G. King for the National Retail Federation, National Council of
Chain Restaurants, Contain-A-Way, Inc., USA Waste of California, Inc.,
California Building Industry Association, California Professional Association of
Specialty Contractors, Western Growers Association, American Staffing
Association, California Hotel & Lodging Association and National Association of
Manufacturers as Amici Curiae on behalf of Petitioners.
Mayer Brown and Donald M. Falk for the American Trucking Association,
Inc., and the California Trucking Association as Amici Curiae on behalf of
Petitioners.
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Julie A. Dunne
and Guylyn R. Cummins for Employers Group, California Retailers
Association, California Hospital Association, California Restaurant
Association, National Federation of Independent Business Small Business
Legal Center, National Council of Chain Restaurants and National Retail
Federation as Amici Curiae on behalf of Petitioners.
Fred J. Hiestand for The Civil Justice Association of California as Amicus
Curiae on behalf of Petitioners.
Robert R. Roginson for the Division of Labor Standards Enforcement and
Labor Commissioner Angela Bradstreet as Amici Curiae on behalf of
Petitioners.
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Jackson Lewis, Robert M. Pattison, Joel P. Kelly, JoAnna L. Brooks and
Timothy C. Travelstead for San Francisco Bay Area Chapter, San Diego
Chapter, Sacramento Chapter, Southern California Chapter and Employment
and Labor Law Committee of the Association of Corporate Counsel as Amici
Curiae on behalf of Petitioners.
Cox, Castle & Nicholson, John S. Miller, Jr., and Dwayne P. McKenzie for the
Associated General Contractors of California, Inc., as Amicus Curiae on
behalf of Petitioners.
Higgs, Fletcher & Mack, Lee Burdick and John Morris for the San Diego
Regional Chamber of Commerce as Amicus Curiae on behalf of Petitioners.
Greenberg Traurig, Gregory F. Hurley and Stacey Herter for National
Association of Theatre Owners of Califomia/Nevada, Inc., as Amicus Curiae
on behalf of Petitioners.
No appearance for Respondent.
Lorens & Associates, L. Tracee Lorens, Robert D. Wilson III, Wayne A.
Hughes; Cohelan & Khoury, Cohelan Khoury & Singer, Timothy D. Cohelan,
Michael D. Singer, Christopher A. Olsen; The Turley Law Firm, William
Turley, David Mara; Furth, Lehmann & Grant, Furth Lehmann, The Furth
Firm, Frederick P. Furth, Jessica L. Grant; Schubert & Reed, Schubert
Jonckheer Kolbe & Kralowec, The Kralowec Law Group, Robert C. Schubert,
Kimberly A. Kralowec; Altshuler Berzon and Michael Rubin for Real Parties
in Interest.
Law Offices of Ian Herzog and Ian Herzog for Morry Brookler and the
Putative Brookler Class as Amici Curiae on behalf of Real Parties in Interest.
Law Offices of Carroll & Scully, Donald C. Carroll and Charles P. Scully II for
California Labor Federation, AFL-CIO as Amicus Curiae on behalf of Real
Parties in Interest.
Bryan Schwartz Law, Bryan Schwartz; Arbogast & Berns and David M.
Arbogast for California Employment Lawyers Association and Consumer
Attorneys of California as Amici Curiae on behalf of Real Parties in Interest.
Brad Seligman for the Impact Fund, Asian Law Caucus, Asian Pacific
American Legal Center, Equal Rights Advocates, Lawyers’ Committee for
Civil Rights, Legal Aid Society-Employment Law Center, Mexican American
Legal Defense & Educational Fund, Public Advocates and Women’s
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Employment Rights Clinic of Golden Gate University School of Law as Amici
Curiae on behalf of Real Parties in Interest.
Pope, Berger & Williams and Timothy G. Williams for Gelasio Salazar and
Saad Shammas as Amici Curiae on behalf of Real Parties in Interest.
Clare Pastore and Kevin Kish for Bet Tzedek Legal Services, Asian Pacific
American Legal Center of Southern California, California Rural Legal
Assistance Foundation, Centro Legal de La Raza, La Raza Centro Legal,
Legal Aid Society-Employment Law Center, Maintenance Cooperation Trust
Fund, National Employment Law Project, Stanford Community Law Clinic
and Wage Justice Center as Amici Curiae on behalf of Real Parties in Interest.
Locker Folberg, Miles E. Locker; Broad & Gusman and Barry Broad as Amici
Curiae on behalf of Real Parties in Interest.
Weinberg, Roger & Rosenfeld, David A Rosenfeld, William A. Sokol,
Theodore Franklin and Patricia M. Gates for Alameda County Central Labor
Council, Bricklayers & Allied Craftworkers Local Union No. 3, California
Conference of Machinists, Communications Workers of America, Contra
Costa County Central Labor Council, Northern California Carpenters Regional
Council, SEIU United Healthcare Workers West, South Bay Central Labor
Council and United Food & Commercial Workers International Union Local 5
as Amici Curiae on behalf of Real Parties in Interest.
Michael L. Smith, Lora Jo Foo and Danielle A. Lucido for Worksafe Law
Center, La Raza Centro Legal, Legal Aid Society-Employment Law Center,
Southern California Coalition for Occupational Safety & Health and
Watsonville Law Center as Amici Curiae on behalf of Real Parties in Interest.
Altshuler Berzon, Michael Rubin, James M. Finberg, Eve Cervantez and
Danielle E. Leonard for Rogelio Hernandez as Amicus Curiae on behalf of
Real Parties in Interest.
Cynthia L. Rice, Jennifer Ambacher; Brad Seligman, Julia Campins; Julie Su;
Irma Herrera; Donna Ryu; Margaret Prado-Alvarez, Matthew Goldberg;
Anamaria Loya; D. Michael Dale; and Marci Seville for California Rural
Legal Assistance Foundation, the Impact Fund, Asian Pacific American Legal
Center, Employee Rights Center, Equal Rights Advocates, Hastings Civil
Justice Clinic, Katharine & George Alexander Community Law Center, Legal
Aid Society-Employment Law Center, La Raza Centro Legal, Northwest
Workers’ Justice Project and Women’s Employment Rights Clinic as Amici
Curiae on behalf of Real Parties in Interest.
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Opinion
WERDEGAR, J. For thebetter part of a century, California law has
guaranteed to employees wage and hour protection, including meal and rest
periods intended to ameliorate the consequences of long hours. For most of
that time, only injunctive remedies were available for violations of meal and
rest period guarantees. In 2000, however, both the Legislature and the
Industrial Welfare Commission (IWC) adopted for the first time monetary
remedies for the denial of meal and rest breaks. (Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1105-1106 [56 Cal.Rptr.3d 880,
155 P.3d 284].) These remedies engendered a wave of wage and hour class
action litigation, including the instant suit in which the trial court granted
class certification and the Court of Appeal then issued writ relief and ordered
three subclasses decertified.
We granted review to consider issues of significance to class actions
generally and to meal and rest break class actions in particular. We conclude,
contrary to the Court of Appeal, that trial courts are not obligated as a matter
of law to resolve threshold disputes over the elements of a plaintiffs claims,
unless a particular determination is necessarily dispositive of the certification
question. Because the parties have so requested, however, we nevertheless
address several such threshold disputes here. On the most contentious of
these, the nature of an employer’s duty to provide meal periods, we conclude
an employer’s obligation is to relieve its employee of all duty, with the
employee thereafter at liberty to use the meal period for whatever purpose he
or she desires, but the employer need not ensure that no work is done.
On the ultimate question of class certification, we review the trial
court’s ruling for abuse of discretion. In light of the substantial evidence
submitted by plaintiffs of defendants’ uniform policy, we conclude the trial
court properly certified a rest break subclass. On the question of meal break
subclass certification, we remand to the trial court for reconsideration. With
respect to the third contested subclass, covering allegations that employees
were required to work “off-the-clock,” no evidence of common policies or
means of proof was supplied, and the trial court therefore erred in certifying a
subclass. Accordingly, because the Court of Appeal rejected certification of
all three subclasses, we will affirm in part, reverse in part, and remand for
further proceedings.
Factual and Procedural Background
Defendants Brinker Restaurant Corporation, Brinker International, Inc., and
Brinker International Payroll Company, L.P. (collectively Brinker), own and
operate restaurants throughout California, including Chili’s Grill & Bar
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and Maggiano’s Little Italy. Brinker previously has owned and operated
additional chains in California, including Romano’s Macaroni Grill, Comer
Bakery Cafe, Cozymel’s Mexican Grill, and On the Border Mexican Grill &
Cantina. Name plaintiffs Adam Hohnbaum, Iliya Haase, Romeo Osorio,
Amanda June Rader, and Santana Alvarado (collectively Hohnbaum) are or
were hourly nonexempt employees at one or more of Brinker’s restaurants.
State law obligates employers to afford their nonexempt employees
meal periods and rest periods during the workday. (See Lab. Code, §§ 226.7,
512; IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050), hereafter
Wage Order No. 5.)1 Labor Code section 226.7, subdivision (a)2 prohibits an
employer from requiring an employee “to work during any meal or rest
period mandated by an applicable order of the Industrial Welfare Commis-
sion.” In turn, Wage Order No. 5, subdivision 12 prescribes rest periods,
while subdivision 11, as well as section 512 of the Labor Code, prescribes
meal periods. Employers who violate these requirements must pay premium
wages. (§226.7, subd. (b); Wage Order No. 5, subds. 11(B), 12(B); see
Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1114.)
In 2002, the Division of Labor Standards Enforcement (DLSE) launched
an investigation into whether Brinker was complying with its obligations to
provide rest and meal breaks, maintain proper records, and pay premium
wages in the event required breaks were not provided. The DLSE filed suit
and eventually settled in exchange for Blinker’s payment of $10 million to
redress injuries suffered by employees between 1999 and 2001 and the
stipulation to a court-ordered injunction to ensure compliance with meal and
rest break laws. In connection with the settlement, Brinker disclaimed all
liability.
In the aftermath of the DLSE’s suit, Hohnbaum filed this putative class
action, seeking to represent the cooks, stewards, buspersons, wait staff, host
staff, and other hourly employees who staff Brinker’s restaurants. The
operative complaint, the first amended complaint, alleges in its first cause of
action that Brinker failed to provide employees the rest breaks, or premium
wages in lieu of rest breaks, due them under law. (See § 226.7; Wage Order
No. 5, subd. 12.) The second cause of action alleges Brinker failed to provide
employees the meal breaks, or premium wages in lieu of meal breaks,
required by law. (See §§ 226.7, 512; Wage Order No. 5, subd. 11.) In the
1 The IWC issues wage orders on an industry-by-industry basis. (Martinez v. Combs (2010)
49 Cal.4th 35, 57 [109 Cal.Rptr.3d 514, 231 P.3d 259].) Wage Order No. 5 governs restaurant
employees, inter alia, while other wage orders impose similar meal and rest period require-
ments for all other nonexempt employees in California. (See generally Cal. Code Regs., tit. 8,
§§ 11010-11170.)
2 All further statutory references are to the Labor Code unless otherwise specified.
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course of litigation, two distinct theories underlying the meal break claim
have emerged: (1) Brinker provided employees fewer meal periods than
required by section 512 and Wage Order No. 5; and (2) Brinker sometimes
required “early lunching,” a single meal period soon after the beginning of a
work shift followed by six, seven, eight, or more hours without an additional
meal period. Finally, Hohnbaum contends Brinker required employees to
work off-the-clock during meal periods and engaged in time shaving, unlaw-
fully altering employee time records to misreport the amount of time worked
and break time taken.3
In aid of a court-ordered mediation, the parties stipulated to the trial court’s
resolving the legal issue central to the early lunching theory: whether state
law imposes timing requirements on when a meal period must be provided
and, if so, what it requires. Hohnbaum contended governing law obligates an
employer to provide a 30-minute meal period at least once every five hours.
Brinker countered that no such timing obligation is imposed, and an employer
satisfies its meal period obligations by providing one meal period for shifts
over five hours and two meal periods for shifts over 10 hours.
The trial court generally agreed with Hohnbaum, holding that an employ-
er’s obligations are not satisfied simply by affording a meal period for each
work shift longer than five hours, and that affording a meal period during the
first hour of a 10-hour shift, with nothing during the remaining nine hours,
would violate the obligation to provide a meal period for each five-hour work
period. This advisory opinion subsequently was confirmed as a court order.
Brinker filed a writ petition in the Court of Appeal, which was denied.
Hohnbaum then moved for class certification, defining the class as “[a]ll
present and former employees of [Brinker] who worked at a Brinker owned
restaurant in California, holding a non-exempt position, from and after
August 16, 2000.”4 The class definition included several subclasses, three of
“ ”which are pertinent here: (1) a ‘Rest Period Subclass’ comprising all
“Class Members who worked one or more work periods in excess of three
and a half (3.5) hours without receiving a paid 10 minute break during which
the Class Member was relieved of all duties, from and after October 1,
“ ”2000”; (2) a ‘Meal Period Subclass’ covering all “Class Members who
worked one or more work periods in excess of five (5) consecutive hours,
without receiving a thirty (30) minute meal period during which the Class
Member was relieved of all duties, from and after October 1, 2000”; and (3)
“an ‘Off-The-Clock’ Subclass” for all “Class Members who worked ‘off-the-
clock’ or without pay from and after August 16, 2000.”
3 This claim is not expressly set forth in the complaint, but the trial court approved a
stipulated amendment deeming the complaint to include allegations that employees worked
off-the-clock during meal periods and Brinker engaged in time shaving.
4 The putative class is estimated to include just under 60,000 Brinker employees.
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Hohnbaum argued class certification was warranted because, inter alia,
common legal and factual issues predominated. He contended Brinker applied
common meal and rest break policies to all nonexempt employees, the
legality of these common policies was most appropriately decided on a
classwide basis, and computer shift records maintained by Brinker could be
used to identify violations and establish classwide liability. Hohnbaum sup-
ported the motion with numerous declarations from proposed class members
asserting that Brinker had failed to provide individuals with meal and rest
breaks or provided breaks at allegedly improper times during the course of an
employee’s work shift. He also submitted survey evidence of ongoing meal
and rest break violations even after settlement with the DLSE.
Brinker opposed class certification, arguing that individual issues predomi-
nated. Specifically, Brinker argued that a rest break subclass should not be
certified because an employer’s obligation is simply to permit such breaks to
be taken, as Brinker did, and whether employees in fact chose to take such
breaks is an individualized inquiry not amenable to class treatment. Brinker
contended a meal period subclass should not be certified because an employer
is obliged only to make meal breaks available and need not ensure that
employees take such breaks. Brinker asserted it had complied with its legal
obligation to make meal breaks available, many employees took those breaks,
and inquiry into why particular employees did not take meal breaks raised
individual questions precluding class treatment. Brinker also contended plain-
tiffs’ early lunching claims were legally unfounded and, in any event,
individual issues again predominated, rendering the meal period claims
unsuitable for litigation on a class basis. Finally, Brinker argued the off-the-
clock subclass should not be certified because no Brinker policy permitted
such alteration of time records, Brinker did not suffer or permit off-the-clock
work, and any such off-the-clock work would require individualized
employee-by-employee proof. Brinker submitted hundreds of declarations in
support of its opposition to class certification.
Following a full hearing, the trial court granted class certification, finding
that common issues predominated over individual issues: “[Cjommon ques-
tions regarding the meal and rest period breaks are sufficiently pervasive to
permit adjudication in this one class action. [][] [Brinker’s] arguments regard-
ing the necessity of making employees take meal and rest periods actually
point[] toward a common legal issue of what [Brinker] must do to comply
with the Labor Code. Although a determination that [Brinker] need not force
employees to take breaks may require some individualized discovery, the
common alleged issues of meal and rest violations predominate.” A class
proceeding was also superior: “Adjudicating plaintiffs’ allegations in one
litigation” would be “much more efficient” than resolving it in 60,000
separate administrative or judicial proceedings, as Brinker had suggested.
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The Court of Appeal granted writ relief and reversed class certification as
to the three disputed subclasses. We granted review to resolve uncertainties in
the handling of wage and hour class certification motions.
Discussion
I. Class Certification Principles
Originally creatures of equity, class actions have been statutorily
embraced by the Legislature whenever “the question [in a case] is one of a
common or general interest, of many persons, or when the parties are
numerous, and it is impracticable to bring them all before the court . . . .”
(Code Civ. Proc., § 382; see Fireside Bank v. Superior Court (2007) 40 Cal.4th
1069, 1078 [56 Cal.Rptr.3d 861, 155 P.3d 268]; City of San Jose v. Superior
Court (1974) 12 Cal.3d 447, 458 [115 Cal.Rptr. 797, 525 P.2d 701].)
Drawing on the language of Code of Civil Procedure section 382 and
federal precedent, we have articulated clear requirements for the certification
of a class. The party advocating class treatment must demonstrate the
existence of an ascertainable and sufficiently numerous class, a well-defined
community of interest, and substantial benefits from certification that render
proceeding as a class superior to the alternatives. (Code Civ. Proc., § 382;
Fireside Bank, at p. 1089; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435
[97 Cal.Rptr.2d 179, 2 P.3d 27]; City of San Jose, at p. 459.) “In turn, the
‘community of interest requirement embodies three factors: (1) predominant
common questions of law or fact; (2) class representatives with claims or
defenses typical of the class; and (3) class representatives who can adequately
”represent the class.’ (Fireside Bank, at p. 1089, quoting Richmond v. Dart
Industries, Inc. (1981) 29 Cal.3d 462, 470 [174 Cal.Rptr. 515, 629 P.2d 23].)
Here, only a single element of class suitability, and a single aspect of
the trial court’s certification decision, is in dispute: whether individual
questions or questions of common or general interest predominate. The
“ultimate question” the element of predominance presents is whether “the
issues which may be jointly tried, when compared with those requiring
separate adjudication, are so numerous or substantial that the maintenance of
a class action would be advantageous to the judicial process and to the
litigants.” (Collins v. Rocha (1972) 7 Cal.3d 232, 238 [102 Cal.Rptr. 1,
497 P.2d 225]; accord, Sav-On Drug Stores, Inc. v. Superior Court (2004) 34
Cal.4th 319, 326 [17 Cal.Rptr.3d 906, 96 P.3d 194].) The answer hinges on
“whether the theory of recovery advanced by the proponents of certification
is, as an analytical matter, likely to prove amenable to class treatment.”
(Sav-On, at p. 327.) A court must examine the allegations of the complaint
and supporting declarations (ibid.) and consider whether the legal and factual
issues they present are such that their resolution in a single class proceeding
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would be both desirable and feasible.5 “As a general rule if the defendant’s
liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their
damages.” (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th
908, 916 [107 Cal.Rptr.2d 761]; accord, Knapp v. AT&T Wireless Services,
Inc. (2011) 195 Cal.App.4th 932, 941 [124 Cal.Rptr.3d 565].)
On review of a class certification order, an appellate court’s inquiry is
narrowly circumscribed. “The decision to certify a class rests squarely within
the discretion of the trial court, and we afford that decision great deference on
appeal, reversing only for a manifest abuse of discretion: ‘Because trial courts
are ideally situated to evaluate the efficiencies and practicalities of permitting
group action, they are afforded great discretion in granting or denying
certification.’ [Citation.] A certification order generally will not be disturbed
unless (1) it is unsupported by substantial evidence, (2) it rests on improper
criteria, or (3) it rests on erroneous legal assumptions. [Citations.]” (Fireside
Bank v. Superior Court, supra, 40 Cal.4th at p. 1089; see also Hamwi v.
Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 472 [140 Cal.Rptr.
215] [“So long as [the trial] court applies proper criteria and its action is
founded on a rational basis, its ruling must be upheld.”].) Predominance is a
factual question; accordingly, the trial court’s finding that common issues
predominate generally is reviewed for substantial evidence. (Sav-On Drug
Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 328-329.) We must
“[p]resum[e] in favor of the certification order ... the existence of every fact
the trial court could reasonably deduce from the record . . . .” (Id. at p. 329.)
The appellate judgment reversing certification rests on two separate
grounds. First, the Court of Appeal held the trial court committed error per se
by ruling on certification without first resolving legal disputes over the scope
of Brinker’s duties to provide meal and rest periods. Second, it held that any
court, upon resolving those disputes, could only have concluded certification
was inappropriate. We consider the first of these grounds in part II., post, and
the second of them in parts IV. through VI., post. As we shall explain, the
first ground does not support the judgment, while the second supports it only
partially.
5 As one commentator has put it, “what really matters to class certification” is “not similarity
at some unspecified level of generality but, rather, dissimilarity that has the capacity to
undercut the prospects for joint resolution of class members’ claims through a unified
proceeding.” (Nagareda, Class Certification in the Age of Aggregate Proof (2009)
84 N.Y.U. L.Rev. 97, 131.)
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II. Class Certification and Disputes over a Claim’s Elements
The trial court concluded it could certify a class without resolving disputes
over the scope of Brinker’s duty to provide breaks because common ques-
tions would predominate even if Brinker’s legal positions were correct.
According to the Court of Appeal, this was error: the trial court “was required
to determine the elements of plaintiffs’ claims” because the court “could not
determine whether individual or common issues predominate in this case, and
thus whether a class action was proper, without first determining this
threshold issue.” While we agree trial courts must resolve any legal or factual
issues that are necessary to a determination whether class certification is
proper, the Court of Appeal went too far by intimating that a trial court must
as a threshold matter always resolve any party disputes over the elements of a
claim. In many instances, whether class certification is appropriate or inap-
propriate may be determined irrespective of which party is correct. In such
circumstances, it is not an abuse of discretion to postpone resolution of the
disputed issue.
“The certification question is ‘essentially a procedural” one that doesnot ask whether an action is legally or factually meritorious.’ (Sav-On Drug
Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, quoting Linder v.
Thrifty Oil Co., supra, 23 Cal.4th at pp. 439-440; see also Eisen v. Carlisle &
Jacquelin (1974) 417 U.S. 156, 178 [40 L.Ed.2d 732, 94 S.Ct. 2140] [“ ‘In
determining the propriety of a class action, the question is not whether the
plaintiff or plaintiffs have stated a cause of action or will prevail on the
merits, but rather whether the requirements of [class certification] are
met.’ ”].) A class certification motion is not a license for a free-floating
inquiry into the validity of the complaint’s allegations; rather, resolution of
disputes over the merits of a case generally must be postponed until after
class certification has been decided (Fireside Bank v. Superior Court, supra,
40 Cal.4th at pp. 1083-1086), with the court assuming for purposes of the
certification motion that any claims have merit (Linder, at p. 443).
We have recognized, however, that “issues affecting the merits of a
case may be enmeshed with class action requirements ...” (Linder v. Thrifty
Oil Co., supra, 23 Cal.4th at p. 443; see also Wal-Mart Stores, Inc. v. Dukes
(2011) 564 U.S._,_[180 L.Ed.2d 374, 131 S.Ct. 2541, 2551] [Analysis
of a class certification’s propriety “[frequently . . . will entail some overlap
with the merits of the plaintiff’s underlying claim. That cannot be helped.”];
Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 469, fn. 12 [57 L.Ed.2d
351, 98 S.Ct. 2454] [“ ‘Evaluation of many of the questions entering into
determination of class action questions is intimately involved with the merits
of the claims.’ ”].) When evidence or legal issues germane to the certification
question bear as well on aspects of the merits, a court may properly evaluate
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_-_them. (Wal-Mart Stores, 564 U.S. at pp. & fn. 6 [131 S.Ct. at
pp. 2551-2552 & fn. 6]; Ghazaryan v. Diva Limousine, Ltd. (2008) 169
Cal.App.4th 1524, 1531 [87 Cal.Rptr.3d 518]; Caro v. Proctor & Gamble Co.
(1993) 18 Cal.App.4th 644, 656 [22 Cal.Rptr.2d 419].) The rule is that a
court may “consider[] how various claims and defenses relate and may affect
the course of the litigation” even though such “considerations . . . may
overlap the case’s merits.” (Fireside Bank v. Superior Court, supra, 40 Cal.4th
at p. 1092; see Szabo v. Bridgeport Machines, Inc. (7th Cir. 2001) 249 F.3d
672, 676 [if the considerations necessary to certification “overlap the mer-
its .. . then the judge must make a preliminary inquiry into the merits”].)
In particular, whether common or individual questions predominate
will often depend upon resolution of issues closely tied to the merits. (Coopers
& Lybrand v. Livesay, supra, 437 U.S. at p. 469, fn. 12; Linder v. Thrifty Oil
Co., supra, 23 Cal.4th at p. 443.) To assess predominance, a court “must
examine the issues framed by the pleadings and the law applicable to the
causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp., supra, 89
Cal.App.4th at p. 916.) It must determine whether the elements necessary to
establish liability are susceptible of common proof or, if not, whether there
are ways to manage effectively proof of any elements that may require
individualized evidence. (See Sav-On Drug Stores, Inc. v. Superior Court,
supra, 34 Cal.4th at p. 334.) In turn, whether an element may be established
collectively or only individually, plaintiff by plaintiff, can turn on the precise
nature of the element and require resolution of disputed legal or factual issues
affecting the merits. For example, whether reliance or a breach of duty can be
demonstrated collectively or poses insuperable problems of individualized
proof may be determinable only after closer inspection of the nature of the
reliance required or duty owed and, in some instances, resolution of legal or
factual disputes going directly to the merits. (See, e.g., Erica P. John Fund,
_-_Inc. v. Halliburton Co. (2011) 563 U.S. _, [180 L.Ed.2d 24,
131 S.Ct. 2179, 2184-2186]; Bartold v. Glendale Federal Bank (2000) 81
Cal.App.4th 816, 829-831 [97 Cal.Rptr.2d 226].)
Such inquiries are closely circumscribed. As the Seventh Circuit has
correctly explained, any “peek” a court takes into the merits at the certifica-
tion stage must “be limited to those aspects of the merits that affect the
decisions essential” to class certification. (Schleicher v. Wendt (7th Cir. 2010)
618 F.3d 679, 685.) While the Schleicher defendants urged that the trial court
had erred by failing to resolve disputes over the falsity and materiality of
their statements, the Seventh Circuit affirmed class certification without
inquiry into such matters, concluding no element of the certification determi-
nation hinged on their resolution. (Ibid.) Likewise, in Jaimez v. Daiohs USA,
Inc. (2010) 181 Cal.App.4th 1286, 1303-1305 [105 Cal.Rptr.3d 443], the
Court of Appeal reversed the trial court’s refusal to certify a wage and hour
class without deciding contested legal issues concerning the defendant’s meal
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break policy because common questions predominated in any event. (See
also Medrazo v.Honda of North Hollywood (2008) 166 Cal.App.4th 89, 97-98
[82 Cal.Rptr.3d 1] [trial court erred in resolving the merits of an affirma-
tive defense divorced from consideration of the specific criteria for class
certification].)
We summarize the governing principles. Presented with a class
certification motion, a trial court must examine the plaintiff’s theory of
recovery, assess the nature of the legal and factual disputes likely to be
presented, and decide whether individual or common issues predominate. To
the extent the propriety of certification depends upon disputed threshold legal
or factual questions, a court may, and indeed must, resolve them. Out of
respect for the problems arising from one-way intervention, however, a court
generally should eschew resolution of such issues unless necessary. (See
Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1074; Schleicher v.
Wendt, supra, 618 F.3d at p. 685.) Consequently, a trial court does not abuse
its discretion if it certifies (or denies certification of) a class without deciding
one or more issues affecting the nature of a given element if resolution of
such issues would not affect the ultimate certification decision.6
In support of its conclusion that a trial court must always first decide
upon the applicable law and resolve legal issues surrounding each element of
a proposed class claim, the Court of Appeal relied principally on our decision
in Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906 [103
Cal.Rptr.2d 320, 15 P.3d 1071]. We disagree with the Court of Appeal’s
reading of our decision. In Washington Mutual, the plaintiffs sought certifica-
tion of a nationwide class. Although members of the plaintiff class were
subject to choice-of-law agreements, the trial court granted certification
without first determining whether the agreements were enforceable and would
result in the application of different state laws, and whether any applicable
state laws varied in ways that would render the class proceeding unmanage-
able. We reversed, explaining that it was not possible to intelligently assess
predominance and the manageability of claims asserted on behalf of nonresi-
dents without those determinations. (Washington Mutual, at pp. 915, 922,
927-928.) Washington Mutual involves an unexceptional application of the
principles we have articulated: if the presence of an element necessary to
certification, such as predominance, cannot be determined without resolving a
particular legal issue, the trial court must resolve that issue at the certification
6 See also, e.g., In re Initial Public Offering Securities Litigation (2d Cir. 2006) 471 F.3d 24,
41 (endorsing similar principles under Fed. Rules Civ.Proc., rule 23, 28 U.S.C.); Gariety v.
Grant Thornton, LLP (4th Cir. 2004) 368 F.3d 356, 365-367 (same); Nagareda, Class
Certification in the Age of Aggregate Proof, supra, 84 N.Y.U. L.Rev. at page 114 (under
federal law, a “court must inquire into the merits ... if that inquiry pertains to the satisfaction
of a [Federal Rules of Civil Procedure,] Rule 23 requirement,” but “oversteps its proper bounds
if it conducts” a “free-floating merits inquiry .. . untethered to a Rule 23 requirement”).
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stage. That the failure to resolve disputed legal issues affecting the elements
of a claim is always reversible error does not follow.
III. Wage Orders and the Labor Code
We turn to the Court of Appeal’s alternate basis for reversing class
certification—that if one considers the substance of the parties’ various legal
disputes and the elements of Hohnbaum’s claims, one must conclude as a
matter of law that common questions do not predominate. In assessing that
conclusion, at the parties’ request we examine the merits of their substantive
legal disputes. (See Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443
[“[W]e see nothing to prevent a court from considering the legal sufficiency
of claims when ruling on certification where both sides jointly request such
action.”].) Because those disputes derive in part from conflicting visions of
the respective roles statutes and wage orders play in establishing the state’s
wage and hour law, we begin by examining those roles.
Nearly a century ago, the Legislature responded to the problem of
inadequate wages and poor working conditions by establishing the IWC and
delegating to it the authority to investigate various industries and promulgate
wage orders fixing for each industry minimum wages, maximum hours of
work, and conditions of labor. (Martinez v. Combs, supra, 49 Cal.4th at
pp. 52-55; see Cal. Const., art. XIV, § 1 [confirming the Legislature’s
authority to establish a commission and grant it legislative and other powers
over such matters].) Pursuant to its “broad statutory authority” (Industrial
Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 701 [166 Cal.Rptr. 331,
613 P.2d 579]), the IWC in 1916 began issuing industry- and occupation--
wide wage orders specifying minimum requirements with respect to wages,
hours, and working conditions (id. at p. 700). In addition, the Legislature
has from time to time enacted statutes to regulate wages, hours, and work-
ing conditions directly. Consequently, wage and hour claims are today
governed by two complementary and occasionally overlapping sources of
authority: the provisions of the Labor Code, enacted by the Legislature, and
a series of 18 wage orders, adopted by the IWC. (Reynolds v. Bement
(2005) 36 Cal.4th 1075, 1084 [32 Cal.Rptr.3d 483, 116 P.3d 1162]; see IWC
wage orders Nos. 1-2001 to 17-2001 and MW-2007 (Cal. Code Regs., tit. 8,
§§ 11000-11170).)
We apply the usual rules of statutory interpretation to the Labor
Code, beginning with and focusing on the text as the best indicator of
legislative purpose. (Murphy v. Kenneth Cole Productions, Inc., supra, 40
Cal.4th at p. 1103.) “[I]n light of the remedial nature of the legislative
enactments authorizing the regulation of wages, hours and working condi-
tions for the protection and benefit of employees, the statutory provisions are
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to be liberally construed with an eye to promoting such protection.” (Industrial
Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 702; see also Murphy,
at p. 1103 [given the Legislature’s remedial purpose, “statutes governing
conditions of employment are to be construed broadly in favor of protecting
employees”].)
In turn, the IWC’s wage orders are entitled to “extraordinary
deference, both in upholding their validity and in enforcing their specific
terms.” (Martinez v. Combs, supra, 49 Cal.4th at p. 61.) When a wage order’s
validity and application are conceded and the question is only one of
interpretation, the usual rules of statutory interpretation apply. (Collins v.
Overnite Transportation Co. (2003) 105 Cal.App.4th 171, 178-179 [129
Cal.Rptr.2d 254]; see Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d
287, 292 [140 P.2d 657].) As with the Labor Code provisions at issue, the
meal and rest period requirements we must construe “have long been viewed
as part of the remedial worker protection framework.” (Murphy v. Kenneth
Cole Productions, Inc., supra, 40 Cal.4th at p. 1105.) Accordingly, the
relevant wage order provisions must be interpreted in the manner that best
effectuates that protective intent. (Martinez, at pp. 61-62; see Industrial
Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 724; Bono Enterprises,
Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 974 [38 Cal.Rptr.2d 549].)
The IWC’s wage orders are to be accorded the same dignity as
statutes. They are “presumptively valid” legislative regulations of the employ-
ment relationship (Martinez v. Combs, supra, 49 Cal.4th at p. 65), regulations
that must be given “independent effect” separate and apart from any statutory
enactments (id. at p. 68). To the extent a wage order and a statute overlap, we
will seek to harmonize them, as we would with any two statutes. (Cal.
Drive-in Restaurant Assn. v. Clark, supra, 22 Cal.2d at pp. 292-293.)
Here, Wage Order No. 5, governing the public housekeeping industry,
applies.7 We consider in turn both the scope of the duties it and several
related statutes (see §§ 226.7, 512, 516) impose on restaurant employers to
afford rest and meal periods, and whether in light of those duties the Court of
Appeal erred in reversing as an abuse of discretion the trial court’s certifica-
tion of three subclasses.8
7 By its terms, Wage Order No. 5 expressly covers restaurant employees such as Hohnbaum
and the proposed class members. (See Wage Order No. 5, subd. 2(P)(1).)
8 We observe that because the IWC’s funding was restricted in 2004 (see Murphy v. Kenneth
Cole Productions, Inc., supra, 40 Cal.4th at p. 1102, fn. 4), the agency has been rendered
essentially unavailable in recent years to cast light on the intended significance of its wage
orders.
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IV. Rest Period Class Certification
A. The Scope of an Employer’s Duty to Provide Rest Periods
Preliminary to its assessment of the trial court’s certification of a rest
period subclass, the Court of Appeal addressed two threshold legal questions:
the amount of rest time that must be authorized, and the timing of any rest
periods. We consider these same two questions.
1. The rate at which rest time must be authorized and
permitted
Brinker’s rest period duties are defined solely by Wage Order No. 5,
subdivision 12. To determine the rate at which rest time must be authorized,
we begin, as always, with the text. (See Reynolds v. Bement, supra, 36 Cal.4th
at p. 1086 [“The best indicator of [the IWC’s] intent is the language of the
[wage order] provision itself.”].) Subdivision 12(A) provides in relevant part:
“Every employer shall authorize and permit all employees to take rest
periods, which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the total hours
worked daily at the rate of ten (10) minutes net rest time per four (4) hours or
major fraction thereof. However, a rest period need not be authorized for
employees whose total daily work time is less than three and one-half (SVi)
hours.”
The text of the wage order is dispositive; it defines clearly how
much rest time must be authorized. Under Wage Order No. 5, subdivi-
sion 12(A)’s second sentence, employees receive 10 minutes for each four
hours of work “or major fraction thereof.” Though not defined in the wage
order, a “major fraction” long has been understood—legally, mathematically,
and linguistically—to mean a fraction greater than one-half.9 The term
“majority fraction” was first introduced in 1947 and then amended to “major
fraction” in 1952;10 the contemporaneous historical evidence suggests the
IWC in the 1940’s understood the term in just such a sense. (See, e.g., IWC “meeting mins. (June 14, 1943) p. 22 [interpreting ‘any fraction of fifteen ”minutes’ to mean “the majority fraction thereof, or eight minutes or
9 See, e.g., Department of Commerce v. Montana (1992) 503 U.S. 442,450-451 [118 L.Ed.2d
87, 112 S.Ct. 1415]; Hovet v. Myers (1971) 260 Or. 152 [489 P.2d 684, 685-686]; 7 Code of
Federal Regulations part 1205.322(b)(1) (2012); Balinski and Young, The Quota Method of
Apportionment, 82 American Mathematical Monthly 701, 704 (Aug.-Sept. 1975); Oxford
English Dictionary Online (3d ed. 2000; online version Mar. 2012) <http://oed.com/view/
Entry/112621> (as of Apr. 12, 2012) (“major” is that which “constitutes the majority or larger
part; usually with part, portion, or other similar nouns”).
10 IWC wage order No. 5 R, subdivision 11 (June 1, 1947); IWC wage order No. 5-52,
subdivision 12 (Aug. 1, 1952).
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1029
more”].) The Division of Labor Standards Enforcement (DLSE) has so
interpreted the phrase as well, construing “major fraction thereof’ as applied
to a four-hour period to mean any amount of time in excess of two
hours—i.e., any fraction greater than half. (Dept. Industrial Relations, DLSE
Opn. Letter No. 1999.02.16 (Feb. 16, 1999) p. l.)11
It follows that Wage Order No. 5, subdivision 12(A)’s second
sentence defines the rest time that must be permitted as the number of hours
worked divided by four, rounded down if the fractional part is half or less
than half and up if it is more (a “major fraction”), times 10 minutes. Thus,
under the initial calculation called for by this part of the wage order, an
employee would receive no rest break time for shifts of two hours or less, 10
minutes for shifts lasting more than two hours up to six hours, 20 minutes for
shifts lasting more than six hours up to 10 hours, and so on.
Though under the basic calculation the right to 10 minutes’ rest would
accrue for any shift lasting more than two hours, the third sentence of Wage
Order No. 5’s rest period subdivision modifies this entitlement slightly. Under
the third sentence, “a rest period need not be authorized for employees whose
total daily work time is less than three and one-half (3½) hours.” (Wage
Order No. 5, subd. 12(A).) Thus, employees working shifts lasting over two
hours but under three and one-half hours, who otherwise would have been
entitled to 10 minutes’ rest, need not be permitted a rest period. The
combined effect of the two pertinent sentences, giving full effect to each, is
this; Employees are entitled to 10 minutes’ rest for shifts from three and
one-half to six hours in length, 20 minutes for shifts of more than six hours
up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours,
and so on.
The Court of Appeal, however, construed the third sentence of the subdivi-
sion as supplying the definition of “major fraction thereof,” reasoning that
otherwise the three and one-half hour proviso and the preceding language
would be irreconcilable. In its view, employees are entitled to 10 minutes’
rest for shifts of three and one-half hours or more, to 20 minutes’ rest for
shifts of seven and one-half hours or more, and so on. An employee working
a seven-hour shift thus would be entitled to only 10 minutes’ rest.
11 “The DLSE ‘is the state agency empowered to enforce California’s labor laws, including
” (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 581 [94IWC wage orders.’ “ ‘ “Cal.Rptr.2d 3, 995 P.2d 139].) The DLSE’s opinion letters, ‘while not controlling upon the
courts by reason of their authority, do constitute a body of experience and informed judgment
” ’ ”to which courts and litigants may properly resort for guidance.’ (Seymore v. Metson
Marine, Inc. (2011) 194 Cal.App.4th 361, 369, fn. 5 [128 Cal.Rptr.3d 13]; see Morillion, at
p. 584 [relying on DLSE opinion letters to inform its interpretation of the IWC’s wage
orders].)
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1030
This reading cannot be reconciled with either the wage order’s text or its
adoption history. First, the express language of the three and one-half hour
proviso speaks only to the circumstance where an employee’s “total daily
work time is less than three and one-half (3½) hours” (Wage Order No. 5,
subd. 12(A), italics added); it does not speak to the circumstance where an
employee’s total daily work time is less than seven and one-half hours, or
less than 11½ hours. “[M]ajor fraction” can be applied to, and must be
defined for, each four-hour period, not just the first four hours of an
employee’s shift: How much time must be worked to earn a second 10
minutes, or a third? What does it mean to work four hours plus a “major
fraction” of another four hours? The three and one-half hour proviso cannot
answer those questions.
Second, the Court of Appeal’s interpretation disregards the use of the word
“However” at the beginning of the three and one-half hour proviso, which
signals that what follows is a deviation from or exception to the previous
rule, not an amplification of it. Though the Court of Appeal perceived an
inconsistency, there is nothing inconsistent in reading the three and one-half
hour proviso as a specific exception to the general rule that working for a
“major fraction” of four hours is sufficient to entitle one to rest time: to earn
the first 10 minutes, one must be scheduled for a work shift of at least three
and one-half hours, while to earn the next 10 minutes, one must be scheduled
to work four hours plus a major fraction, to earn the next, eight hours plus a
major fraction, and so on.
The IWC’s explanatory remarks at the time the three and one-half hour
proviso was adopted reveal the proviso was intended as just such a limited “exception: ‘The rest period provision was clarified to indicate that an
employee working less than 3½ hours for the entire day would not need to ”have a rest period.’ (IWC meeting mins. (May 16, 1952) p. 34.) The three
and one-half hour proviso thus was not inserted as a definition of the phrase
“major fraction,” but simply as a limit on the shift length that would warrant
any break at all.
Finally, the Court of Appeal attached great significance to a different 1952
change, the substitution in the wage order of “major” for “majority,” but the
two terms are essentially synonymous when used as modifiers, and the
change appears to have been the product of an idiomatic choice, rather than
an intended semantic distinction. (See also IWC wage order No. 5-57,
subd. 15(a) (Nov. 15, 1957) [amending toilet requirements to mandate “one
toilet for every twenty-five (25) female employees or major fraction thereof’
in lieu of “. . . majority fraction thereof’ with no evident change in
meaning].)
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1031
Having resolved the amount of rest time an employer must authorize and
permit, we turn to the question of when it must be afforded.
2. Rest period timing
Hohnbaum asserts employers have a legal duty to permit their employees a
rest period before any meal period. Construing the plain language of the
operative wage order, we find no such requirement and agree with the Court
of Appeal, which likewise rejected this contention.
Wage Order No. 5, subdivision 12(A) provides in relevant part:
“Every employer shall authorize and permit all employees to take rest
periods, which insofar as practicable shall be in the middle of each work
period.” Neither this part of the wage order nor subdivision 11, governing
meal periods, speaks to the sequence of meal and rest breaks. The only
constraint on timing is that rest breaks must fall in the middle of work
periods “insofar as practicable.” Employers are thus subject to a duty to make
a good faith effort to authorize and permit rest breaks in the middle of each
work period, but may deviate from that preferred course where practical
considerations render it infeasible. At the certification stage, we have no
occasion to decide, and express no opinion on, what considerations might be
legally sufficient to justify such a departure.
The difficulty with Hohnbaum’s argument that we should read into the
wage order an absolute obligation to permit a rest period before a meal period
can be illustrated by considering the case of an employee working a six-hour
shift. Such an employee is entitled (in the absence of mutual waiver) to a
meal period (Wage Order No. 5, subd. 11(A)) and, as discussed above, to a
single rest period. Either the rest period must fall before the meal period or it
must fall after. Neither text nor logic dictates an order for these, nor does
anything in the policies underlying the wage and hour laws12 compel the
conclusion that a rest break at the two-hour mark and a meal break at the
four-hour mark of such a shift is lawful, while the reverse, a meal break at
the two-hour mark and a rest break at the four-hour mark, is per se illegal.
Hohnbaum seeks to overcome the lack of textual support for his
position by offering a DLSE opinion letter interpreting the identical language
in a different wage order. (Dept. Industrial Relations, DLSE Opn. Letter
No. 2001.09.17 (Sept. 17, 2001) [interpreting IWC wage order No. 16-2001
(Cal. Code Regs., tit. 8, § 11160)].) Responding to a hypothetical about an
employer who affords employees a meal break at the five-hour mark of an
12 See generally Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at page 1113
(discussing the health and safety considerations behind meal and rest periods).
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1032
eight-hour shift, the DLSE opined that “absent truly unusual circumstances,”
placing both rest breaks before the meal break, and none after, would not “ comport with the wage order requirement that rest breaks ‘insofar as ” practicable, shall be in the middle of each work period.’ (DLSE Opn. Letter
No, 2001.09.17, supra, at p. 4.) We have no reason to disagree with the
DLSE’s view regarding the scenario it considered, but that view does not
establish universally the proposition that an employee’s first rest break must
always come sometime before his or her first meal break. Rather, in the
context of an eight-hour shift, “[a]s a general matter,” one rest break should
fall on either side of the meal break. (Ibid.) Shorter or longer shifts and other
factors that render such scheduling impracticable may alter this general rule.
B. Certification of a Rest Period Subclass
In granting class certification, the trial court accepted without modification
the proposed class and subclass definitions. The rest period subclass covers
“Class Members who worked one or more work periods in excess of three
and a half (3.5) hours without receiving a paid 10 minute break during which
the Class Member was relieved of all duties, from and after October 1, 2000
(‘Rest Period Subclass’).”
That the trial court did not apply improper criteria, i.e., decide certification
on a basis other than whether superiority of the class action mechanism,
commonality of issues, and other relevant factors had been shown, is
undisputed. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34
Cal.4th at p. 332; Walshv.IKON Office Solutions, Inc. (2007) 148 Cal.App.4th
1440, 1451 [56 Cal.Rptr.3d 534].) Nor, as we have discussed, was the trial
court obligated as a matter of law to resolve all legal disputes concerning the
elements of Hohnbaum’s rest break claims before certifying a class. (Ante, pt.
II.) Hence, the only remaining question is whether the court abused its
discretion in concluding that common questions predominate. We conclude it
did not.
The issue for the trial court was whether any of the rest break theories of
recovery advanced by Hohnbaum were “likely to prove amenable to class
treatment.” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at
p. 327.) The complaint alleges Blinker failed “to provide rest periods for
every four hours or major fraction thereof worked per day to non-exempt
employees.” Though Hohnbaum briefs multiple theories of liability, to con-
clude class certification was not an abuse of discretion we need consider only
one; the theory that Blinker adopted a uniform corporate rest break policy
that violates Wage Order No. 5 because it fails to give full effect to the
“major fraction” language of subdivision 12(A).
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Hohnbaum presented evidence of, and indeed Brinker conceded at
the class certification hearing the existence of, a common, uniform rest break
policy. The rest break policy was established at Brinker’s corporate headquar-
ters; it is equally applicable to all Brinker employees. Under the written
policy, employees receive one 10-minute rest break per four hours worked:
“If I work over 3.5 hours during my shift, I understand that I am eligible for
one ten minute rest break for each four hours that I work.”13 Classwide
liability could be established through common proof if Hohnbaum were able
to demonstrate that, for example, Brinker under this uniform policy refused to
authorize and permit a second rest break for employees working shifts longer
than six, but shorter than eight, hours. Claims alleging that a uniform policy
consistently applied to a group of employees is in violation of the wage and
hour laws are of the sort routinely, and properly, found suitable for class
treatment. (See, e.g., Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th at
pp. 1299-1305; Ghazaryan v. Diva Limousine, Ltd.., supra, 169 Cal.App.4th at
pp. 1533-1538; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th
1193, 1205-1208 [76 Cal.Rptr.3d 804].)
In reversing class certification, the Court of Appeal concluded that
because rest breaks can be waived—as all parties agree—“any showing on a
class basis that plaintiffs or other members of the proposed class missed rest
breaks or took shortened rest breaks would not necessarily establish, without
further individualized proof, that Brinker violated” the Labor Code and Wage
Order No. 5. This was error. An employer is required to authorize and permit
the amount of rest break time called for under the wage order for its industry.
If it does not—if, for example, it adopts a uniform policy authorizing and
permitting only one rest break for employees working a seven-hour shift
when two are required—it has violated the wage order and is liable. 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. As Hohnbaum pleaded and presented substantial evidence
of a uniform rest break policy authorizing breaks only for each full four hours
worked, the trial court’s certification of a rest break subclass should not have
been disturbed.
We observe in closing that, contrary to the Court of Appeal’s conclusion,
the certifiability of a rest break subclass in this case is not dependent upon
resolution of threshold legal disputes over the scope of the employer’s rest
break duties. The theory of liability—that Brinker has a uniform policy, and
that that policy, measured against wage order requirements, allegedly violates
the law—is by its nature a common question eminently suited for class
treatment. As noted, we have at the parties’ request addressed the merits of
13 Other evidence the trial court was entitled to credit suggested employees may not have
been permitted even that much rest break time.
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1034
their threshold substantive disputes. However, in the general case to prema-
turely resolve such disputes, conclude a uniform policy complies with the
law, and thereafter reject class certification—as the Court of Appeal did—
places defendants in jeopardy of multiple class actions, with one after another
dismissed until one trial court concludes there is some basis for liability and
in that case approves class certification. (See Fireside Bank v. Superior Court,
supra, 40 Cal.4th at p. 1078.) It is far better from a fairness perspective to
determine class certification independent of threshold questions disposing of
the merits, and thus permit defendants who prevail on those merits, equally
with those who lose on the merits, to obtain the preclusive benefits of such
victories against an entire class and not just a named plaintiff. (Id. at p. 1083.)
V. Meal Period Class Certification
As with the rest break subclass, the Court of Appeal addressed two
threshold legal issues before assessing whether certification of a subclass was
proper: (1) the nature of an employer’s duty to provide employees with meal
periods; and (2) the timing requirements applicable to the provision of meal
periods. We likewise begin with these issues.
A. The Scope of the Employer’s Duty to Provide Meal Periods
1. The nature of the duty
We consider what it means for an employer to provide a nonexempt
employee a meal period. Hohnbaum contends an employer is obligated to
“ensure that work stops for the required thirty minutes.” Brinker, in a position
adopted by the Court of Appeal, contends an employer is obligated only to
“make available” meal periods, with no responsibility for whether they are
taken. We conclude that under Wage Order No. 5 and Labor Code section 512,
subdivision (a), an employer must relieve the employee of all duty for the
designated period, but need not ensure that the employee does no work.
Historically, an employer’s meal period obligations were governed
solely by the language of the IWC’s wage orders, and so we begin there.
Under Wage Order No. 5, subdivision 11(A), “[n]o employer shall employ
any person for a work period of more than five (5) hours without a meal
period of not less than 30 minutes . . .” absent a mutual waiver in certain
limited circumstances. The wage order employs no verb between “without”
and “a meal period” (e.g., providing, requiring, offering, allowing, granting)
to specify the nature of the employer’s duty. Rather, the order identifies only
the condition triggering the employer’s duty (employment of any person for
at least five hours) and the employee’s concomitant entitlement (a meal
period of at least 30 minutes).
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1035
In the absence of a verb, the key language giving content to the employer’s
duty comes from the wage order’s further definition of what an employee is
to receive. Under Wage Order No. 5, subdivision 11(A), “[u]nless the
employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an ‘on duty’ meal period and counted as time
worked. An ‘on duty’ meal period shall be permitted only when the nature of
the work prevents an employee from being relieved of all duty and when by
written agreement between the parties an on-the-job paid meal period is
agreed to. The written agreement shall state that the employee may, in
writing, revoke the agreement at any time.”
“ ” Parsed, the order’s text spells out the nature of ‘on duty’ meal
periods and the precise circumstances in which they are permitted. It follows
that absent such circumstances, an employer is obligated to provide an
“off-duty” meal period. The attributes of such off-duty meal periods are
evident from the nature of their reciprocal, on-duty meal periods. An on duty
meal period is one in which an employee is not “relieved of all duty” for the
entire 30-minute period. (Wage Order No. 5, subd. 11(A).) An off-duty meal
period, therefore, is one in which the employee “is relieved of all duty during
[the] 30 minute meal period.” (Ibid., italics added.) Absent circumstances
permitting an on-duty meal period, an employer’s obligation is to provide an
off-duty meal period: an uninterrupted 30-minute period during which the
employee is relieved of all duty.
The IWC’s wage orders have long made a meal period’s duty-free nature
its defining characteristic. The 1943 version of the wage order governing
restaurant employees first introduced the principle: “No employer shall
employ any woman or minor for a work period of more than five (5) hours
without an allowance of not less than thirty (30) minutes for a meal. If during
such meal period the employee can not be relieved of all duties and permitted
to leave the premises, such meal period shall not be deducted from hours
worked.” (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943).) The 1947
wage order retained the duty-free concept, but more clearly specified the
circumstances under which an employer would be excused from relieving an
employee: “An ‘on duty’ meal period will be permitted only when the nature
of the work prevents an employee from being relieved of all duty, and such ‘on
duty’ meal period shall be counted as hours worked without deduction from
wages.” (IWC wage order No. 5 R, subd. 10 (June 1, 1947).) In 1963, the
operative language was amended almost to its current form (IWC wage order
No. 5-63, subd. 11(a) (Aug. 30, 1963)), save for the requirement that on-duty
--- PDF page 33 ---
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meals be agreed to in writing, which was added in 1976 (IWC wage order
No. 5-76, subd. 11(A) (Oct. 18, 1976)).14
As the IWC explained plainly in 1979: “A ‘duty free’ meal period is
necessary for the welfare of employees. The section is sufficiently flexible to
allow for situations where that is not possible,” i.e., by establishing condi-
tions for an on-duty meal period. “The Commission received no compelling
evidence and concluded that there was no rationale to warrant any change in
this section, the basic provisions of which date back more than 30 years.”
(IWC, Statement as to the Basis for Wage Order No. 5-80 (Sept. 7, 1979);
accord, IWC, Statement as to the Basis for Wage Order No. 5-89 (Sept. 7,
1989); IWC statement of findings in support of 1976 wage order revisions
(Aug. 13, 1976) p. 14.)
The DLSE’s contemporaneous opinion letters reflect the same un-
derstanding. In 1988, the DLSE noted it “has historically taken the position
that unless employees are relieved of all duties and are free to leave the ”premises, the meal period is considered as ‘hours worked.’ (Dept. Industrial
Relations, DLSE Opn. Letter No. 1988.01.05 (Jan. 5, 1988) p. 1.) Three years
later, in response to a question concerning employees working in the field
free of direct supervision and control, it advised that if “the employee has a
reasonable opportunity to take the full thirty-minute period free of any duty,
the employer has satisfied his or her obligation. The worker must be free to
attend to any personal business he or she may choose during the unpaid meal
period.” (Dept. Industrial Relations, DLSE Opn. Letter No. 1991.06.03 (June
3, 1991) p. 1.)15As these opinion letters make clear, and as the DLSE argues
in its amicus curiae brief, the wage order’s meal period requirement is
satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free
to leave the premises, and (3) is relieved of all duty for the entire period.
(DLSE Opn. Letter No. 1988.01.05, supra, at p. 1; Dept. Industrial Relations,
DLSE Opn. Letter No. 1996.07.12 (July 12, 1996) p. 1.) We agree with this
DLSE interpretation of the wage order.
It was against this background that in 1999 the Legislature first
regulated meal periods, previously the exclusive province of the IWC. New
14 We declared IWC wage order No. 5-76 invalid for failure to include an adequate
Statement as to the Basis (see California Hotel & Motel Assn. v. Industrial Welfare Com. (1979)
25 Cal.3d 200, 216 [157 Cal.Rptr. 840, 599 P.2d 31]; § 1177, subd. (b)), but the IWC thereafter
cured the omission and reissued identical meal period language (see IWC, Statement as to the
Basis for Wage Order No. 5-80 (Sept. 7, 1979); IWC wage order No. 5-80, subd. (11)(A) (Jan.
1, 1980)).
15 See also Bono Enterprises, Inc. v. Bradshaw, supra, 32 Cal.App.4th at page 975
(emphasizing absence of duty and freedom from employer control as central to unpaid meal
“ ”periods); Wage Order No. 5, subdivision 2(K) (defining ‘Hours worked’ as including all
time when subject to employer control).
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1037
section 512 made meal periods a statutory as well as a wage order obligation:
an employer must “provid[e] the employee with a meal period of not less
than 30 minutes” for workdays lasting more than five hours, and provide two
meal periods for workdays in excess of 10 hours, subject to waiver in certain
circumstances. (Former § 512, enacted by Stats. 1999, ch. 134, § 6,
p. 1823.)16
The duty to provide meal periods is not further defined by section
512, but the nature of the duty is evident from surrounding indicia of
legislative intent. As discussed, when the Legislature entered the field of meal
break regulation in 1999, it entered an area where the IWC and DLSE had,
over more than half a century, developed a settled sense of employers’ meal
break obligations. In such circumstances, we begin with the assumption the
Legislature did not intend to upset existing rules, absent a clear expression of
contrary intent. (Industrial Welfare Com. v. Superior Court, supra, 27 Cal.3d
at p. 734; see also Cal. Drive-in Restaurant Assn. v. Clark, supra, 22 Cal.2d at
p. 292 [statutes should be construed insofar as possible to avoid implied
repeal of wage orders].) Section 512’s mandate that employers “provid[e]”
30-minute meal breaks can be read as shorthand for the requirement contem-
plated in subdivision 11 of most of the IWC’s wage orders: Employers must
afford employees uninterrupted half-hour periods in which they are relieved
of any duty or employer control and are free to come and go as they please.
Examination of the relevant legislative history confirms this reading. The
origins of section 512 trace to the late 1990’s, when the IWC amended five
wage orders to abolish daily overtime, limiting overtime compensation to
hours worked in excess of 40 per week, rather than hours worked in excess of
eight per day, as had previously been the case. (See Johnson v. Arvin-Edison
Water Storage Dist. (2009) 174 Cal.App.4th 729, 735 [95 Cal.Rptr.3d 53].)
Troubled by this weakening of employee protections, the Legislature enacted
the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999 (Stats.
1999, ch. 134, p. 1820, enacting Assem. Bill No. 60 (1999-2000 Reg. Sess.)),
which restored daily overtime, nullified IWC-approved alternative workweek
schedules, and directed the IWC to readopt conforming wage orders. (Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 60 (1999-2000 Reg. Sess.) as amended July 1, 1999, pp. 2-5; see also
Stats. 1999, ch. 134, § 2, p. 1820; Assem. Conc. Sen. Amends, to Assem. Bill
No. 60 (1999-2000 Reg. Sess.) as amended July 1, 1999, p. 6.)
As part of its response to the IWC’s rollback of employee protec-
tions, the Legislature wrote into statute various guarantees that previously had
16 As enacted in 1999, the text of section 512 consisted of what is now section 512,
subdivision (a). (Stats. 1999, ch. 134, § 6, p. 1823.) The original text was recodified without
change in 2000 when a new subdivision was added. (Stats. 2000, ch. 492, § 1, p. 3500.)
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1038
been left to the IWC, including meal break guarantees. (§ 512, subd. (a).) The
declared intent in enacting section 512 was not to revise existing meal period
rules but to codify them in part. (See, e.g., Assem. Com. on Appropriations,
Analysis of Assem. Bill No. 60 (1999-2000 Reg. Sess.) as amended Mar. 22,
1999, p. 3; Legis. Counsel’s Dig., Assem. Bill No. 60 (1999-2000 Reg. Sess.)
5 Stats. 1999, Summary Dig., p. 62.) It follows that the duty the Legislature
intended to impose was the duty as it had existed under the IWC’s wage
orders. Thus, under what is now section 512, subdivision (a), as under Wage
Order No. 5, an employer’s obligation when providing a meal period is to
relieve its employee of all duty for an uninterrupted 30-minute period.
Hohnbaum contends that an employer has one additional obligation: to
ensure that employees do no work during meal periods. He places principal
reliance on a series of DLSE opinion letters. In 2001, in the course of
discussing rest breaks, the DLSE distinguished an employer’s meal break
duties and observed that for meal breaks “[an] employer has an affirmative
obligation to ensure that workers are actually relieved of all duty, not
performing any work, and free to leave the worksite . . . .” (Dept, of
Industrial Relations, DLSE Opn. Letter No. 2001.09.17, supra, p. 4, italics
added.) In 2002, the DLSE reiterated the point: with regard to meal periods,
“an employer has an affirmative obligation to ensure that workers are actually
relieved of all duty, not performing any work, and . . . free to leave the
employer’s premises.” (Dept, of Industrial Relations, DLSE Opn. Letter
No. 2002.01.28 (Jan. 28, 2002) p. 1, italics added; see also Dept, of Industrial
Relations, DLSE Opn. Letter No. 2002.09.04 (Sept. 4, 2002) p. 2 [“[A]s a
general rule the required meal period must be an off-duty meal period, during
which time the employee ... is not suffered or permitted to work . . . .”].)
We are not persuaded. The difficulty with the view that an employer must
ensure no work is done—i.e., prohibit work—is that it lacks any textual basis
in the wage order or statute. While at one time the IWC’s wage orders
contained language clearly imposing on employers a duty to prevent their
employees from working during meal periods,17 we have found no order in
the last half-century continuing that obligation. Indeed, the obligation to
ensure employees do no work may in some instances be inconsistent with the
fundamental employer obligations associated with a meal break: to relieve the
employee of all duty and relinquish any employer control over the employee
17See, e.g., IWC wage order No. 2, subdivision 1(20) (Apr. 14, 1916) (“no woman or minor
shall be permitted to return to work in less than one-half hour’’); IWC wage order No. 3a,
subdivision 12 (lune 4, 1928) (same); IWC wage order No. 18, subdivision 10 (Feb. 26, 1932)
(same); id., subdivision 11, footnote * (“It is recommended that. . . without exception where
[lunch room] space is provided, all women and minors shall be required during the meal period
to leave and remain out of the room in which they are regularly employed.”); IWC wage order
No. 9 Amended, subdivision 9(a) (Aug. 28, 1933) (“The employer is responsible for seeing
that [the meal period] time is taken.”).
--- PDF page 36 ---
1039
and how he or she spends the time. (See Morillion v. Royal Packing Co.,
supra, 22 Cal.4th at pp. 584-585 [explaining that voluntary work may occur
while not subject to an employer’s control, and its cessation may require the
reassertion of employer control].)
For support, Hohnbaum focuses on the phrase “No employer shall employ
any person [without the specified meal period] . . .” (Wage Order No. 5,
subd. (11)(A)), contending that “employ” includes permitting or suffering one
to work, and so the employer is forbidden from permitting an employee to
work during a meal break. Although Hohnbaum is entirely correct about the
broad meaning the wage order gives the term “employ” (see Wage Order
No. 5, subd. 2(E) [“ ‘Employ’ means to engage, suffer, or permit to
work.’ ”]),18his argument misconstrues the role that broad definition plays in
the structure of subdivision 11(A). The provision identifies both an employer
obligation (relieving employees of all duty for 30 minutes) and a condition
precedent or trigger for that obligation. “No employer shall employ” is part of
the definition of the trigger, not of the obligation. If an employer engages,
suffers, or permits anyone to work for a full five hours, its meal break
obligation is triggered. “Employ” relates to what must transpire during the
five-hour work period; it does not relate to what must transpire next.
What must transpire after the meal break obligation is triggered is
covered by later parts of the subdivision relating to waiver, on-duty meal
periods (and by negative implication off-duty meal periods), and premium
pay. When someone is suffered or permitted to work—i.e., employed—for
five hours, an employer is put to a choice: it must (1) afford an off-duty meal
period; (2) consent to a mutually agreed-upon waiver if one hour or less will
end the shift; or (3) obtain written agreement to an on-duty meal period if
circumstances permit. Failure to do one of these will render the employer
liable for premium pay. (§ 226.7, subd. (b); Wage Order No. 5, subd. 11(A),
(B).) As earlier discussed, because the defining characteristic of on-duty meal
periods is failing to relieve an employee of duty, not simply “suffering or
permitting” work to continue, it follows that off-duty meal periods are
18 Wage Order No. 5’s definition of “employ” was first inserted in 1943. (TWC wage order
No. 5 NS, subd. 2(c) (June 28, 1943).) At the time, the IWC explained that “in order to
overcome the possibility of subterfuge being resorted to by unscrupulous employers under
which subterfuge such employers claim that they did not hire the employee, it becomes
necessary to find that ‘employment’ means ‘suffering or permitting’ a woman or minor to
perform services . . . .” (IWC meeting mins. (Apr. 14, 1943) p. 4.) The adopted definition was
consistent with how the IWC had used the term from its earliest wage orders forward. (See
Martinez v. Combs, supra, 49 Cal.4th at pp. 57-58.)
--- PDF page 37 ---
1040
similarly defined by actually relieving an employee of all duty: doing so
transforms what follows into an off-duty meal period, whether or not work
continues.19
Proof an employer had knowledge of employees working through
meal periods will not alone subject the employer to liability for premium pay;
employees cannot manipulate the flexibility granted them by employers to use
their breaks as they see fit to generate such liability. On the other hand, an
employer may not undermine a formal policy of providing meal breaks by
pressuring employees to perform their duties in ways that omit breaks.
(Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963 [35
Cal.Rptr.3d 243]; see also Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th
at pp. 1304—1305 [proof of common scheduling policy that made taking
breaks extremely difficult would show violation]; Dilts v. Penske Logistics,
LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [indicating informal anti-meal--
”break policy “enforced through ‘ridicule’ or ‘reprimand’ would be illegal].)
The wage orders and governing statute do not countenance an employer’s
exerting coercion against the taking of, creating incentives to forgo, or
otherwise encouraging the skipping of legally protected breaks.
To summarize: An employer’s duty with respect to meal breaks
under both section 512, subdivision (a) and Wage Order No. 5 is an
obligation to provide a meal period to its employees. The employer satisfies
this obligation if it relieves its employees of all duty, relinquishes, control
over their activities and permits them a reasonable opportunity to take an
uninterrupted 30-minute break, and does not impede or discourage them from
doing so. What will suffice may vary from industry to industry, and we
cannot in the context of this class certification proceeding delineate the full
range of approaches that in each instance might be sufficient to satisfy the
law.
On the other hand, the employer is not obligated to police meal breaks and
ensure no work thereafter is performed. Bona fide relief from duty and the
19 If work does continue, the employer will not be liable for premium pay. At most, it will
be liable for straight pay, and then only when it “knew or reasonably should have known that
the worker was working through the authorized meal period.” (Dept. Industrial Relations, DLSE
Opn. Letter No. 1991.06.03, supra, p. 1; see Morillion v. Royal Packing Co., supra, 22 Cal.4th
at p. 585.) The DLSE correctly explains the distinction in its amicus curiae brief: “The
employer that refuses to relinquish control over employees during an owed meal period
violates the duty to provide the meal period and owes compensation [and premium pay] for
hours worked. The employer that relinquishes control but nonetheless knows or has reason to
know that the employee is performing work during the meal period, has not violated its meal
period obligations [and owes no premium pay], but nonetheless owes regular compensation to
“its employees for time worked.” (See also Wage Order No. 5, subd. 2(K) [defining ‘[h]ours
”worked,’ for which compensation is owed, to include “all the time the employee is suffered
or permitted to work, whether or not required to do so”].)
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1041
relinquishing of control satisfies the employer’s obligations, and work by a
relieved employee during a meal break does not thereby place the employer
in violation of its obligations and create liability for premium pay under
Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7,
subdivision (b).
2. Meal period timing
We turn to the question of timing. To determine whether the IWC or
the Legislature intended to regulate meal period timing, we consider the
language and history of both Labor Code section 512 and Wage Order No. 5.
We conclude that, absent waiver, section 512 requires a first meal period no
later than the end of an employee’s fifth hour of work, and a second meal
period no later than the end of an employee’s 10th hour of work. We
conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5
does not impose additional timing requirements.
We begin with the text of section 512, subdivision (a). On the subject of
first meal periods, it provides: “An employer may not employ an employee
for a work period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes, except that if the
total work period per day of the employee is no more than six hours, the meal
period may be waived by mutual consent of both the employer and em-
ployee.” This provision could be interpreted as requiring employers either to
provide a meal break after no more than five hours of work in a day, absent
waiver, or simply to provide a meal break at any point in scheduled shifts that
exceed five hours.
The first interpretation is the correct one: the statute requires a first
meal period no later than the start of an employee’s sixth hour of work.
Section 512, subdivision (b) resolves the ambiguity. It provides: “Notwith-
standing subdivision (a), the Industrial Welfare Commission may adopt a
working condition order permitting a meal period to commence after six
hours of work if the commission determines that the order is consistent with
the health and welfare of the affected employees.” The provision employs the
language of timing: the IWC may adopt a rule “permitting a meal period to
commence after six hours,” i.e., as late as six hours into a shift. {Ibid., italics
added.) By beginning with “Notwithstanding subdivision (a),” the provision
further indicates that any such timing rule would otherwise contravene
subdivision (a). Only if subdivision (a) was intended to ensure that a first
meal period would commence sooner than six hours, after no more than five
hours of work, would this be true. (See Assem. Republican Caucus, analysis
of Sen. Bill No. 88 (1999-2000 Reg. Sess.) as amended Aug. 10, 2000, p. 1
[prior to the addition of § 512, subd. (b), noting that “[e]xisting law requires
--- PDF page 39 ---
1042
that the meal period begin no later than 5 hours after work begins”].)
Accordingly, first meal periods must start after no more than five hours.20
We turn to the matter of second meal periods. Section 512, subdivision (a)
provides in its second sentence: “An employer may not employ an employee
for a work period of more than 10 hours per day without providing the
employee with a second meal period of not less than 30 minutes, except that
if the total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee only if
the first meal period was not waived.” As with the first sentence of subdivision
(a), this language is susceptible of two readings: it could be interpreted as
requiring employers to provide a second meal break after no more than 10
hours of work in a day, absent waiver, or as simply requiring employers to
provide at least two separate breaks at any point in scheduled shifts that
exceed 10 hours. Significantly, however, the language is parallel to subdivision
(a)’s first sentence. Hence, if the first sentence was intended to ensure a first
meal period no more than five hours into a shift, as subdivision (b) reveals it
was, it follows that the second, parallel, sentence should be read to require a
second meal period after no more than 10 hours of work in a day, i.e., no
later than what would be the start of the 11th hour of work, absent waiver.
Hohnbaum contends section 512 should be read as requiring as well
a second meal period no later than five hours after the end of a first meal
period if a shift is to continue. The text does not permit such a reading. It
requires a second meal after no more than 10 hours of work; it does not add
the caveat “or less, if the first meal period occurs earlier than the end of five
hours of work.” Because the statutory text is conclusive, we need not
consider extrinsic sources on this point. (Beal Bank, SSB v.Arter & Hadden,
LLP (2007) 42 Cal.4th 503, 507-508 [66 Cal.Rptr.3d 52, 167 P.3d 666].)
The further issue is whether Wage Order No. 5 imposes any additional
requirement. We agree with Brinker that it does not.
The IWC has long been understood to have the power to adopt
requirements beyond those codified in statute. (Industrial Welfare Com. v.
Superior Court, supra, 27 Cal.3d at p. 733; Cal. Drive-in Restaurant Assn. v.
Clark, supra, 22 Cal.2d at pp. 292-294; see also ante, at p. 1027.) Section 516
creates an exception; it bars the use of this power to diminish section 512’s
protections: “Except as provided in Section 512, the Industrial Welfare
20 The IWC has permitted first meal periods after six hours of work for all employees under
wage order No. 12 and those under wage order No. 1 who collectively bargain for such a
variance. (IWC wage order No. 12-2001 (Jan. 1, 2001); IWC wage order No. 1-2001, as
amended July 1, 2002; Cal. Code Regs., tit. 8, §§ 11120, subd. 11(A), 11010, subd. 11(A)). It
has made no similar allowance in the wage order applicable here, Wage Order No. 5.
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1043
Commission may adopt or amend working condition orders with respect to
break periods, meal periods, and days of rest for any workers in California
consistent with the health and welfare of those workers.” (Italics added).
While the Legislature in section 516 generally preserved the IWC’s authority
to regulate break periods, it intended to prohibit the IWC from amending its
wage orders in ways that “conflict[] with [the] 30-minute meal period
requirements” in section 512. (Legis. Counsel’s Dig., Sen. Bill No. 88
(1999-2000 Reg. Sess.) 6 Stats. 2000, Summary Dig., p. 212; see Bearden v.
U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 438 [41 Cal.Rptr.3d 482].) In
the absence of a conflict, however, the IWC may still augment the statutory
framework with additional protections on matters not covered by section 512;
that is, the Legislature did not intend to occupy the field of meal period
regulation. (See, e.g., Sen. 3d reading analysis of Sen. Bill No. 88
(1999-2000 Reg. Sess.) as amended Aug. 10, 2000, p. 5 [authorizing the
IWC to regulate so long as the orders it adopts are “consistent” with § 512];
§ 226.7 [imposing premium wages for violations of the IWC’s meal period
provisions, rather than § 512].)
The text of Wage Order No. 5 is ambiguous. Subdivision 11(A) provides in
relevant part: “No employer shall employ any person for a work period of
more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete
the day’s work the meal period may be waived by mutual consent of the
employer and employee.” This language may be read to mirror our interpre-
tation of section 512: employees are due a first meal period after no more
than five hours of work, a second meal period after no more than 10 hours,
and so on. Alternatively, it may be read more restrictively, as allowing an
employer to schedule no more than five hours of work between a first meal
period and either another meal period or the end of the shift. Thus, for
example, an employee given a meal period after three hours of work would
become entitled after eight hours of work either to end the shift or to take a
second meal period, even though 10 hours of work were not yet complete.21
In the face of this textual ambiguity, we consider the relevant adoption
history. (See Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1235 [130
Cal.Rptr.2d 209].)
Evidence in the historical record suggests the IWC’s meal period language
originally was intended to limit employees to five-hour work intervals
without a meal. In 1943, the first version of the current language appeared:
21 A third interpretation, that the provision guarantees only the rate at which meal periods
are owed and not the timing of them—one meal period for each five full hours worked, to be
provided as early or as late as the employer chooses—is advocated by neither party. As our
examination of the IWC’s records, post, makes clear, it is also not an interpretation the IWC
ever contemplated.
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1044
“No employer shall employ any woman or minor for a work period of more
than five (5) hours without an allowance of not less than thirty (30) minutes
for a meal.” (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943).) The
provision’s intended function was to ensure workers were not required to go
too long without a meal break; the IWC found “that it is necessary to insure a
meal period after not more than 5 hours of work in order to protect the health
of women and minors.” (IWC meeting mins. (Feb. 5, 1943) p. 19; accord,
IWC meeting mins. (Apr. 14, 1943) p. 6.)22
At the time, this provision was understood to apply to the work intervals
that conclude shifts, as well as those that begin shifts. In response to a request
from a regulated store that, for shifts running from 9:00 a.m. to 6:00 p.m.,
employees be permitted to lunch between 11:00 a.m. and noon, i.e., with six
hours between the end of the meal period and the shift end, the IWC adopted
an exception to the five-hour limit, allowing work periods of up to six hours
at the end of shifts. (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943)
[“However, if the employee’s work for the day will be completed within six
(6) hours, such meal period need not be given.”]; IWC meeting mins. (Jan.
29, 1943) p. 15; IWC meeting mins. (Feb. 5, 1943) p. 19.)
In 1947, the IWC briefly departed from its original formulation, rewriting
the timing requirement to apply only to the beginning of each work shift.
(IWC wage order No. 5 R, subd. 10 (June 1, 1947) [“No employee shall be
required to work more than five (5) consecutive hours after reporting for
work, without a meal period of not less than (30) minutes.”].) In 1952,
however, it returned to its previous approach, adopting language that has been
carried forward to today without significant change.23 (IWC wage order
No. 5-52, subd. 11 (Aug. 1, 1952) [“No employer shall employ any woman
or minor for a work period of more than five (5) hours without a meal period
of not less than thirty (30) minutes; except that when a work period of not
more than six (6) hours will complete the day’s work, the meal period may be
waived.”].) The IWC explained this revision was intended to expand the right
to meal periods from a single break in the first five hours to one at least every “five hours through the day: ‘The meal period provision was amended to
permit a 6-hour work period without a meal when such a work shift would
complete the day’s work, [with] the additional provision that a meal period
shall be every 5 hours rather than providing only one meal period within the
22 This was consistent with historical practice, as the IWC had long regulated both the
number and timing of meals. (See, e.g., IWC wage order No. 2, subd. 1(20) (Apr. 14, 1916)
[guaranteeing a “noon day meal”]; IWC wage order No. 4, subd. 1(21) (June 15, 1917) [adding
a provision for an “evening meal” on shifts extending into the night]; IWC wage order No. 3a,
subd. 12 (June 4, 1928) [providing for an evening meal if work continued beyond 7:30 p.m.].)
23 In 1963, the IWC clarified that waiver of a meal period required mutual consent, and in
1976 it expanded coverage to men. (See IWC wage order No. 5-63, subd. 11(a) (Aug. 30,
1963); IWC wage order No. 5-76, Subd. 11(A) (Oct. 18, 1976).)
--- PDF page 42 ---
1045
”first 5 hours.’ (IWC meeting mins. (May 16, 1952) p. 33 [adopting
summary of findings], italics added.)
The IWC’s descriptions of its meal period requirement in the ensuing years
similarly reflected an understanding that work periods before and after meals
were to be limited to five hours absent waiver. For example, the commission,
discussing IWC wage order No. 12-63 (Aug. 30, 1963) (identically worded to
Wage Order No. 5 save for a longer permissible period between meals),
explained that the meal provision “requires the employer to provide meal
periods at intervals of no more than five and one-half hours within the work
period.” (Wage Board for IWC Wage Order No. 12—Motion Picture Industry,
Rep. & Recommendations (Oct. 21, 1966) p. 6; see also Margaret T. Miller,
IWC executive officer, letter to Klaus Wehrenberg (July 13, 1982) p. 2 [under
the IWC’s wage orders, “meal periods must be provided ‘at such intervals as
will result in no employee working longer than five consecutive hours
without an eating period’ ”].)
In 1999, however, the Legislature passed Assembly Bill No. 60
(1999-2000 Reg. Sess.), which among other things repudiated the IWC’s
actions in adopting a series of wage orders that had eliminated daily
overtime. (Harris v. Superior Court (2011) 53 Cal.4th 170, 177 [135
Cal.Rptr.3d 247, 266 P.3d 953]; ante, at p. 1037.) Assembly Bill No. 60
repealed five wage orders, including IWC wage order No. 5-98 (Jan. 1,
1998), and required the IWC to review its wage orders and readopt orders
conforming to the Legislature’s expressed intentions. (§517; Stats. 1999, ch.
134, § 21, p. 1829.) It also enacted section 512, which for the first time set
out statutory meal period requirements.
The IWC complied with the directive to adopt new wage orders. Pending
completion of plenary review, it issued an interim wage order applicable to
all industries, including those previously and subsequently covered by Wage
Order No. 5. Notably, the interim order mirrored section 512’s language,
spelling out that a second meal period was required after 10 hours of work,
rather than leaving the timing of second meal periods to implication, as
previous wage orders generally had. (IWC interim wage order—2000 (Mar.
1, 2000) subd. 9.)24 The IWC also explained its intention that, absent waiver,
employees were entitled to “a thirty-minute meal period for every 5 hours of
work" (IWC official notice, Summary of Interim Wage Order—2000, italics
24 Subdivision 9 provided: “9. MEAL PERIODS, [ft] (A) No employer shall employ any
person for a work period of more than five (5) hours without a meal period of not less than
thirty (30) minutes, except that when a work period of not more than six (6) hours will
complete the day’s work the meal period may be waived by mutual consent of employer and
employee, [ft] (B) An employer may not employ an employee for a work period of more than
ten (10) hours per day without providing the employee with a second meal period of not less
than thirty (30) minutes, except that if the total hours worked is no more than twelve (12)
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1046
“added), a lesser requirement than the IWC’s prior view that ‘a meal period ” shall be every 5 hours’ (IWC meeting mins. (May 16, 1952) p. 33). From
the text of the interim order and the official explanation, it is apparent the
IWC intended a requirement parallel to that of the Legislature’s section 512,
with a second meal period due after 10 hours, rather than after an interval of
no more than five hours following a first meal period.
Thereafter, the IWC held public hearings and adopted revised wage orders
for each industry, including the current version of Wage Order No. 5, wage
order No. 5-2001. From our review of the text of the various wage orders, the
IWC’s official explanations of its intent behind these orders, and the tran-
scripts of the IWC’s numerous hearings, we conclude the IWC abandoned
any requirement that work intervals be limited to five hours following the
first meal break.
With only limited exceptions, the IWC intended its 2001 wage orders to
embrace section 512’s meal period requirements, not impose different ones.
Having borrowed the provisions of Assembly Bill No. 60 (1999-2000 Reg.
Sess.), including section 512, for its interim wage order, the IWC simply
copied the interim wage order’s meal provision into most of its industry-
specific wage orders. (IWC public hearing transcript (June 30, 2000) pp. 7-10
[explaining intent to mirror Assem. Bill No. 60 on meals]; see, e.g., IWC
wage order No. 2-2001 (Jan. 1, 2001); IWC wage order No. 3-2001 (Jan. 1,
2001); IWC wage order No. 6-2001 (Jan. 1, 2001); Cal. Code Regs., tit. 8,
§§ 11020, subd. 11(A), (B), 11030, subd. 11(A), (B), 11060, subd. 11(A),
(B).) The IWC explained that under these wage orders, first meals would
continue to be assured for employees “working for a period of more than five
(5) hours,” while second meal periods would now be provided “in accordance
with Labor Code § 512(a).” (IWC, Statement as to the Basis (Jan. 1, 2001)
p. 19; see also IWC summary of amends, to wage orders Nos. 1-13, 15 & 17
(Jan. 1, 2001) [except as specified in wage orders Nos. 4, 5 & 12, employees
are entitled to “a 30-minute meal period for every 5 hours of work”].) Thus,
as to the majority of its 2001 wage orders, the IWC did not intend to impose
a different meal period requirement than that spelled out in section 512;
specifically, it did not intend to require employers to provide employees a
second meal period no more than five hours after a first meal period. These
orders and the statute are congruent; under each, a first meal period is
guaranteed after five hours of work, while a second meal period is required
only after 10 hours of work.
The IWC varied slightly the language of wage orders Nos. 4-2001 and
5-2001. These two orders retained the same subdivision 11(A) language
hours, the second meal period may be waived by mutual consent of the employer and the
employee only if the first meal period was not waived.” (IWC interim wage order—2000 (Mar.
1, 2000) subd. 9.)
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1047
requiring a meal period for every five hours, as in other wage orders, but they
omitted the subdivision 11(B) language used elsewhere to define the condi-
tions for receiving, and for waiving, a second meal period. As we shall
explain, this omission was for reasons related to meal period waivers, not
meal timing. The IWC did not intend in Wage Order No. 5 to depart from the
timing requirements contained in other wage orders or section 512.
The IWC had originally modified the meal waiver requirements in wage
orders Nos. 4 and 5 in 1993, in response to a health care industry petition to
permit its employees to waive a second meal period on longer shifts in order
to leave earlier. (See IWC petn. 93-1 (Jan. 25, 1993) pp. 31-32; IWC wage
order No. 4-89, subd. 11(C) (as amended Aug. 21, 1993); IWC wage order
No. 5-89, subd. 11(C) (as amended Aug. 21, 1993); IWC, Statement as to the
Basis of amends, to §§ 2, 3 & 11 of IWC wage order No. 5-89 (June 29,
1993).) The IWC later extended similar waiver rights to all employees
covered by these wage orders and three others, but that extension was among
many wage order changes repealed by the Legislature in 1999. (IWC,
Statement as to the Basis, overtime and related issues (Apr. 11, 1997)
pp. 7-8; Stats. 1999, ch. 134, § 21, p. 1829.)
Thereafter, health care representatives persuaded the IWC to at least
preserve expanded waiver rights for their industry, along the lines of those
originally afforded in 1993. (See IWC, Statement as to the Basis (Jan. 1,
2001) pp. 19-20.) Accordingly, wage orders Nos. 4-2001 and 5-2001 each
contain a provision absent from other wage orders, permitting health care
employees to waive one of two meal periods on longer shifts. (IWC wage
order No. 4-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11040,
subd. 11(D)); Wage Order No. 5, subd. 11(D).)25 Notably, the waiver
provisions permit meal waivers even on shifts in excess of 12 hours and thus
conflict with language in the standard subdivision regulating second meal
periods in other wage orders that limits second meal waivers to shifts of 12
hours or less (see, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code
Regs., tit. 8, § 11020, subd. 11(B))). For this reason, the IWC elected to omit
that standard subdivision from these two wage orders. (See IWC, Statement
as to the Basis (Jan. 1, 2001) pp. 19-20.) Because the omission related to
25 Hohnbaum argues that because the right to waive a second meal period was extended to
employees working in excess of eight hours, the IWC must have contemplated employees
accruing a right to a second meal before 10 hours of work. The historical record does not
support this inference. The language was originally prepared by industry officials, not the IWC.
(IWC, Statement as to the Basis (Jan. 1, 2001) p. 20.) In public discussion of the second meal
waiver provision, neither in 1993 nor in 2000 did the issue arise of a second meal period being
owed five hours after a first meal period. Instead, discussion focused on whether health care
employees working 12-hour shifts, as opposed to eight-hour shifts, should be allowed to waive
a second meal period. (See, e.g., IWC public hearing transcript (Apr. 7, 1993); IWC public
hearing transcript (Jan. 28, 2000); IWC public hearing transcript (Apr. 14, 2000).)
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1048
waiver and was not the product of any intent to include different meal timing
requirements in Wage Order No. 5, we interpret that order as imposing the
same timing requirements as those in most of the IWC’s other wage orders
and in section 512.26
Hohnbaum contends he does not seek to require earlier second meal
periods than provided for by section 512 (and, as we have determined, by
Wage Order No. 5); rather, he seeks only to interpret Wage Order No. 5,
subdivision 11(A) as requiring that first meal periods be timed to prevent
work periods, before or after, exceeding five hours. While we agree that the
period before a first meal is limited to five hours (see § 512, subd. (a)), we
cannot agree that the current version of Wage Order No. 5 limits to five hours
the amount of work after a meal.
First, such a reading of subdivision 11(A) in the IWC’s current wage
orders would render the subdivision 11(B) guarantee of a second meal period
after 10 hours of work, included in most of those same orders, superfluous.
(See, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8,
§ 11020, subd. 11(A), (B)).) We avoid such constructions whenever possible.
(Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Bd. (2006) 40 Cal.4th 1, 14 [50 Cal.Rptr.3d 585, 145 P.3d 462].)27
Second, Hohnbaum’s argument rests on the contention that as used “by the IWC, ‘work period’ is a term of art meaning ‘a continuing period of ”hours worked,’ and thus the five-hour “work period” limit in subdivi-
sion 11(A) of the wage orders must preclude more than five hours of con-
tinuous work after a meal period. “Work period” is not defined in any wage
order. If the IWC’s wage orders once informally adhered to Hohnbaum’s
usage, its 2001 orders no longer do. Subdivision 11(B) in most of the current
orders refers to a “work period of more than ten (10) hours per day” before a
second meal period. (E.g., IWC wage order No. 1-2001 (Jan. 1, 2001) (Cal.
26 IWC wage order No. 12-2001 stands in contrast. There, the IWC, in response to film
industry concerns that section 512 conflicted with industry collective bargaining agreements
setting meal breaks at intervals of six hours, preserved language setting first and subsequent
meals at six-hour intervals, rather than after five hours of work and 10 hours of work. (See
IWC wage order No. 12-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11120, subd. 11(A));
IWC public hearing transcript (May 5, 2000) pp. 44-50.) Had the IWC intended in Wage
Order No. 5 to preserve timing requirements additional to those provided by section 512, it
could similarly have varied that wage order’s language. It did not.
27 While Wage Order No. 5 does not include a second meal period guarantee in its
subdivision 11(B), that omission is not, as just discussed, the result of any different intent with
respect to second meal periods under the wage order. Most other wage orders include both a
subdivision 11(A) mirroring Wage Order No. 5’s subdivision 11(A) and a subdivision 11(B)
guaranteeing a second meal period after 10 hours, and these provisions must be read to avoid
surplusage.
--- PDF page 46 ---
1049
Code Regs., tit. 8, § 11010, subd. 11(B)).) Any such work period must have
“been broken by a first meal period and thus is not ‘a continuing period of
”hours worked.’
Third, there is no evidence the IWC intended to supplement the require-
ments of section 512 in the fashion Hohnbaum suggests. The implication is to
the contrary. Having received a legislative rebuke, the IWC sought to make
its orders track Assembly Bill No. 60 (1999-2000 Reg. Sess.) as closely as
possible and expressed hesitance about departing from statutory requirements.
(See, e.g., IWC public hearing transcript (May 5, 2000) pp. 52-56.) What
departures it made appear to have been conscious choices, expressly identi-
fied in the IWC’s Statement as to the Basis, and frequently justified by
explicit reliance on its authority to augment the Labor Code. (See IWC,
Statement as to the Basis (Jan. 1, 2001) pp. 19-20.) In contrast, the prospect
of preserving any meal timing requirement previously implicit in Wage Order
No. 5, beyond the requirements of section 512, was never discussed in the
agency’s 2000 hearings nor in its publications describing and explaining its
2001 wage orders. In the absence of any such discussion, we conclude the
IWC did not intend to preserve Hohnbaum’s posited requirement.28
Accordingly, we conclude that Wage Order No. 5 imposes no meal
timing requirements beyond those in section 512. Under the wage order, as
under the statute, an employer’s obligation is to provide a first meal period
after no more than five hours of work and a second meal period after no more
than 10 hours of work.
B. Certification of a Meal Period Subclass
We return to the question of certification. The proposed meal period
subclass includes all “Class Members who worked one or more work periods
in excess of five (5) consecutive hours, without receiving a thirty (30) minute
28 In the ordinary case, proof that statutory or regulatory language was adopted with a
particular intent, and that the adopting body did not thereafter express a contrary intent, may
suffice to show that the language should be interpreted today in line with that original intent.
Hohnbaum develops such an argument, trying to establish the original intent behind Wage
Order No. 5, subdivision 11(A)’s language and afford a basis to presume the same intent must
hold today. But the inference Hohnbaum relies on—that this language should be read today to
mean what it meant when adopted—collapses in the presence of evidence that the IWC in
2000 selected the current language to replicate the rules enacted by the Legislature in 1999,
while preserving an expanded right to waive second meal periods for certain workers, and in
the absence of evidence that it selected the language to also preserve a limitation on the
duration of work after first meal periods.
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1050
meal period during which the Class Member was relieved of all duties, from
and after October 1, 2000.” The trial court accepted the subclass without
modification and concluded: “Although a determination that defendant need
not force employees to take breaks may require some individualized discov-
ery, the common alleged issues of meal and rest violations predominate.”
Thus, it reasoned that even if Brinker were correct about the nature of its
duties, to treat the case as a class action would still be the better course.
One aspect of the class definition is notable: It sweeps in not only every
Brinker employee who might have a claim under Hohnbaum’s failure to
provide meal periods theory, but also every employee who might have had a
claim under the theory that a meal period must be provided every five hours.
Consequently, because we have concluded neither Wage Order No. 5 nor
section 512 imposes such a timing requirement, the class definition as
presently drawn includes individuals with no possible claim.
That aspect of the class definition is notable for a second reason. In
an unusual action requested by the parties, the trial court before deciding
certification issued an explicit ruling on Hohnbaum’s meal timing theory,
agreeing with Hohnbaum that section 512 required a meal period every five
hours. That the meal subclass definition thereafter incorporated Hohnbaum’s
timing theory thus raises the specter that the certification may have been
influenced, in part, by the trial court’s legal assumption about the theory’s
merits. Any such assumption would have been incorrect, given our ruling on
the actual requirements of Wage Order No. 5 and section 512. (See ante, at
pp. 1041-1049.) A grant or denial of class certification that rests in part on an
erroneous legal assumption is error; without regard to whether such a
certification might on other grounds be proper, it cannot stand. (Linder v.
Thrifty Oil Co., supra, 23 Cal.4th at p. 436 [“[A]n order based upon improper ‘criteria or incorrect assumptions calls for reversal “even though there may ’be substantial evidence to support the court’s order.” ”].)
Under the unique circumstances of this case, however, we need not decide
whether or not the trial court erred. Our subsequent ruling on Hohnbaum’s
meal timing theory, solicited by the parties, has changed the legal landscape;
whether the trial court may have soundly exercised its discretion before that
ruling is no longer relevant. At a minimum, our ruling has rendered the class
definition adopted by the trial court overinclusive: The definition on its face
embraces individuals who now have no claim against Brinker. In light of our
substantive rulings, we consider it the prudent course to remand the question
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1051
of meal subclass certification to the trial court for reconsideration in light of
the clarification of the law we have provided.
VI. Off-the-clock Claims Class Certification
The third disputed subclass covers “Class Members who worked ‘off-the-
clock’ or without pay from and after August 16, 2000.” As with the rest
period subclass, we consider only whether substantial evidence supports the
trial court’s conclusion that common questions predominate. None does.
Hohnbaum’s off-the-clock claims are an offshoot of his meal period claims.
He contends Brinker required employees to perform work while clocked out
during their meal periods; they were neither relieved of all duty nor afforded
an uninterrupted 30 minutes, and were not compensated. Hohnbaum further
contends Brinker altered meal break records to conceal time worked during
these periods.
Unlike for the rest period claim and subclass, for this claim neither a
common policy nor a common method of proof is apparent. The rest period
claim involved a uniform Brinker policy allegedly in conflict with the legal
requirements of the Labor Code and the governing wage order. The only
formal Brinker off-the-clock policy submitted disavows such work, consistent
with state law.29 Nor has Hohnbaum presented substantial evidence of a
systematic company policy to pressure or require employees to work off-the-
clock, a distinction that differentiates this case from those he relies upon in
which off-the-clock classes have been certified. (See, e.g., Salvas v. Wal-Mart
Stores, Inc. (2008) 452 Mass. 337 [893 N.E.2d 1187,- 1210-1211]; Hale v.
Wal-Mart Stores, Inc. (Mo.Ct.App. 2007) 231 S.W.3d 215, 220, 225-228;
Iliadis v. Wal-Mart Stores, Inc. (2007) 191 NJ. 88 [922 A.2d 710, 715-716,
723-724].)
Moreover, that employees are clocked out creates a presumption they are
doing no work, a presumption Hohnbaum and the putative class members
have the burden to rebut. As all parties agree, liability is contingent on proof
Brinker knew or should have known off-the-clock work was occurring.
(Morillion v.Royal Packing Co., supra, 22 Cal.4th at p. 585; see, e.g., White v.
29 Brinker’s “Hourly Employee Handbook” states in part: “It is your responsibility to clock
in and clock out for every shift you work. . . . [Y]ou may not begin working until you have
clocked in. Working ‘off the clock’ for any reason is considered a violation of Company policy.
If you forget to clock in or out, or if you believe your time records are not recorded accurately,
you must notify a Manager immediately, so the time can be accurately recorded for payroll
purposes.”
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1052
Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1083-1085 [granting
the defense summary judgment on an off-the-clock claim in the absence of
proof the employer knew or should have known of the employee’s work].)
Nothing before the trial court demonstrated how this could be shown through
common proof, in the absence of evidence of a uniform policy or practice.
Instead, the trial court was presented with anecdotal evidence of a handful of
individual instances in which employees worked off-the-clock, with or with-
out knowledge or awareness by Drinker supervisors. On a record such as this,
where no substantial evidence points to a uniform, companywide policy,
proof of off-the-clock liability would have had to continue in an employee-
by-employee fashion, demonstrating who worked off-the-clock, how long
they worked, and whether Drinker knew or should have known of their work.
Accordingly, the Court of Appeal properly vacated certification of this
subclass.
Disposition
For the foregoing reasons, we affirm the Court of Appeal’s judgment as to
the off-the-clock subclass. We reverse its judgment as to the rest period
subclass. Finally, as to the meal period subclass, we reverse the Court of
Appeal’s judgment insofar as it directed the trial court to enter denial of
certification with prejudice. We remand to the Court of Appeal with directions
to, in turn, remand to the trial court for it to reconsider meal period subclass
certification in light of the clarification of the law we have provided.
Cantil-Sakauye, C. J., Kennard, J., Daxter, J., Chin, J., Corrigan, J., and
Liu, J., concurred.
WERDEGAR, J., Concurring. I joinfully in today’s majority opinion,
which I authored. For guidance on the issue we remand, meal period subclass
certification, I write separately to emphasize what our opinion does not say.
In returning the case for reconsideration, the opinion of the court does not
endorse Drinker’s argument, accepted by the Court of Appeal, that the
question why a meal period was missed renders meal period claims categori-
cally uncertifiable. Nor could it, for such a per se bar would be inconsistent
with the law governing reporting obligations and our historic endorsement of
a variety of methods that render collective actions judicially manageable.
Employers covered by Industrial Welfare Commission (IWC) wage order
No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) have an obligation both to
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1053
relieve their employees for at least one meal period for shifts over five hours
(id., subd. 11(A)) and to record having done so (id., subd. 7(A)(3) [“Meal
periods . . . shall also be recorded.”]). If an employer’s records show no meal
period for a given shift over five hours, a rebuttable presumption arises that
the employee was not relieved of duty and no meal period was provided. This
is consistent with the policy underlying the meal period recording require-
ment, which was inserted in the IWC’s various wage orders to permit
enforcement. (See, e.g., IWC board for wage order No. 7-63 meeting mins.
(Dec. 14-15, 1966) pp. 4—5 [rejecting proposal to eliminate the meal period
recording requirement because “without the recording of all in-and-out time,
including meal periods, the enforcement staff would be unable to adequately
investigate and enforce” a wage order’s meal period provisions].) An employ-
er’s assertion that it did relieve the employee of duty, but the employee
waived the opportunity to have a work-free break, is not an element that a
plaintiff must disprove as part of the plaintiff’s case-in-chief. Rather, as the
Court of Appeal properly recognized, the assertion is an affirmative defense,
and thus the burden is on the employer, as the party asserting waiver, to plead
and prove it. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th
1, 31, 33 [44 Cal.Rptr.2d 370, 900 P.2d 619]; Williams v. Marshall (1951) 37
Cal.2d 445, 456 [235 P.2d 372].)1
While individual issues arising from an affirmative defense can in some
cases support denial of certification,- 2 they pose no per se bar (see, e.g., Sav-On
Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334—338 [17
Cal.Rptr.3d 906, 96 P.3d 194]; Weinstat v. Dentsply Intemat., Inc. (2010) 180
1 As the Division of Labor Standards Enforcement (DLSE) has explained, even under the
less restrictive wage order applicable to agricultural employees, if “a meal period is not taken
by the employee, the burden is on the employer to show that the agricultural employee had
been advised of his or her legal right to take a meal period and has knowingly and voluntarily
decided not to take the meal period. Again, we emphasize, the burden is on the employer.”
(Dept. Industrial Relations, DLSE Opn. Letter No. 2003.08.13 (Aug. 13, 2003) p. 2 [interpret-
ing IWC wage order No. 14 (Cal. Code Regs., tit. 8, § 11140)].) To place the burden elsewhere
would offer an employer an incentive to avoid its recording duty and a potential windfall from
the failure to record meal periods. Both the United States Supreme Court and the courts of this
state have rejected such an approach. (See Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S.
680, 686-688 [90 L.Ed. 1515, 66 S.Ct. 1187] [where an employer is subject to a recordkeeping
requirement, the burden shifts to that employer to rebut employee proof of monies owed once
a prima facie case has been made]; Ghazaryan v.Diva Limousine, Ltd. (2008) 169 Cal.App.4th
1524, 1536, fn. 11 [87 Cal.Rptr.3d 518] [refusing to allow an employer to use any shortcom-
ings in its records to resist employee wage claims]; Cicairos v. Summit Logistics, Inc. (2005)
133 Cal.App.4th 949, 961 [35 Cal.Rptr.3d 243] [“ ‘[Wjhere the employer has failed to keep
records required by statute, the consequences for such failure should fall on the employer, not
the employee.’ ”].)
2 See, e.g., Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th 133,
151-154 [127 Cal.Rptr.3d 394]; Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th
1440, 1450 [56 Cal.Rptr.3d 534]; Block v. Major League Baseball (1998) 65 Cal.App.4th 538,
544 [76 Cal.Rptr.2d 567].
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1054
Cal.App.4th 1213, 1235 [103 Cal.Rptr.3d 614]). Instead, whether in a given
case affirmative defenses should lead a court to approve or reject certification
will hinge on the manageability of any individual issues. (See Sav-On, at
p. 334.)
For purposes of class action manageability, a defense that hinges liability
vel non on consideration of numerous intricately detailed factual questions, as
is sometimes the case in misclassification suits,3 is different from a defense
that raises only one or a few questions and that operates not to extinguish the
defendant’s liability but only to diminish the amount of a given plaintiff’s
recovery. We have long settled that individual damages questions will rarely
if ever stand as a bar to certification. (Sav-On Drug Stores, Inc. v. Superior
Court, supra, 34 Cal.4th atp. 334; EmploymentDevelopmentDept. v. Superior “Court (1981) 30 Cal.3d 256, 266 [178 Cal.Rptr. 612, 636 P.2d 575].) ‘In
almost every class action, factual determinations [of damages] ... to
individual class members must be made. [Citations.] Still we know of no case
where this has prevented a court from aiding the class to obtain its just
restitution. Indeed, to decertify a class on the issue of damages or restitution ”may well be effectively to sound the death-knell of the class action device.’
(B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341,
1354 [235 Cal.Rptr. 228].)
Instead, we have encouraged the use of a variety of methods to enable
individual claims that might otherwise go unpursued to be vindicated, and to
avoid windfalls to defendants that harm many in small amounts rather than a
few in large amounts. (See Sav-On Drug Stores, Inc. v. Superior Court, supra,
34 Cal.4th at pp. 339-340; Daar v. YellowCab Co. (1967) 67 Cal.2d 695,
714-715 [63 Cal.Rptr. 724, 433 P.2d 732].) Representative testimony, sur-
veys, and statistical analysis all are available as tools to render manageable
determinations of the extent of liability. (See, e.g., Bell v. Farmers Ins.
Exchange (2004) 115 Cal.App.4th 715, 749-755 [9 Cal.Rptr.3d 544] [uphold-
ing as consistent with due process the use of surveys and statistical analysis
to measure a defendant’s aggregate liability under the IWC’s wage orders];
Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [certify-
ing a meal break subclass because liability could be established through
employer records and representative testimony, and class damages could be
established through statistical sampling and selective direct evidence]; see
generally Sav-On, at p. 333 & fn. 6.) “[Statistical inference offers a means of
vindicating the policy underlying the Industrial Welfare Commission’s wage
orders without clogging the courts or deterring small claimants with the cost
of litigation.” (Bell, at p. 751.)
3 See, e.g., Soderstedt v. CBIZ Southern California, LLC, supra, 197 Cal.App.4th at pages
146-149; Walsh v. IKON Office Solutions, Inc., supra, 148 Cal.App.4th at pages 1454—1456;
but see Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pages 334—340.
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1055
Given these settled principles, Brinker has not shown the defense it raises,
waiver, would render a certified class categorically unmanageable. Instead, it
remains for the trial court to decide on remand, in the fullness of its
discretion, whether in this case methods exist sufficient to render class
treatment manageable. As to that question, neither the full court nor I express
any opinion.
Liu, J., concurred.