In Tien v. Tenet Healthcare Corporation, the California Court of Appeal for the Second District addressed vexing issues arising under California’s meal period rules. California law generally provides that an employer may not employ an employee for more than five hours per day without “providing” the employee with a meal period of not less than 30 minutes. Where an employee works more than ten hours in a day, the employee must also be provided with a second thirty-minute meal period. There are some exceptions to these rules, but they are quite narrow.
The Tien case illustrates the procedural quagmire that courts find themselves in when trying to adjudicate class action lawsuits alleging failure to provide meal periods. On the one hand, guidelines established pursuant to the Trial Court Delay Reduction Act provide that trial courts should dispose of 85% of civil cases within eighteen months of filing, and 100% of civil cases within two years of filing. On the other hand, since 2008, California courts (and employers) have been waiting for the California Supreme Court to define the exact nature of an employer’s obligation to “provide” meal periods to employees as two cases raising this issue have been pending since then. Lacking clear guidance, trial courts are left to make their own way.
Tien is a fairly typical wage and hour class action lawsuit. It alleges that employees of Tenet Healthcare Corporation (“Tenet”) were denied meal periods and rest periods. It also seeks to recover penalties for related violations of wage statement rules and final pay rules. The trial court initially certified several classes against Tenet. It reconsidered that ruling after Tenet filed a timely motion. In July 2008, after the motion for reconsideration had been filed but before the trial court had ruled on the motion, the Fourth District Court of Appeal issued its ruling in Brinker Restaurant Corp. v. Superior Court. In Brinker, the Court of Appeal held that an employer satisfies its obligation to “provide” a meal period to employees by making meal periods available to employees, and that it need not guarantee that employees take their meal periods.
On October 22, 2008, the California Supreme Court granted review in Brinker. Under the California Rules of Court, this meant that the case was automatically “depublished” and could not be cited by the parties or by any court. Tenet then requested that the trial court stay the case, pending a Supreme Court decision in Brinker. On October 24, the trial court rejected this request, stating “We’re going to have to go forward with the case. I’m not prepared to just . . . let it stall.”
Four days later, on October 28, 2008, the Second District Court of Appeal joined the discussion, issuing its opinion in Brinkley v. Public Storage, Inc. Brinkley, like Brinker, held that employers can satisfy their obligation to provide meal periods to employees without ensuring that the employees actually take the meal periods.
On November 2, 2008, during Brinkley’s brief interval as citable authority, the trial court granted Tenet’s motion for reconsideration. The trial court denied virtually all of the plaintiffs’ motion to certify (leaving intact only a narrow subclass concerning the hourly rates Tenet paid for missed meal periods). The trial court described Brinkley as a “change in the law,” and reasoned that liability could no longer be determined by simply asking whether an employee actually took a meal period. Rather, the trial court stated, it would now be required to determine why an employee did not take a meal period in each instance. The trial court also noted that there were numerous individual issues presented in those instances where Tenet’s records did not accurately reflect whether an employee had taken a meal period. The trial court reached the same conclusion with respect to rest periods. Based upon this reasoning, the trial court concluded that common issues did not predominate over individual issues, and that class litigation would therefore not be a superior method of adjudication.
In response, plaintiffs filed papers that argued that, with Brinker now depublished, the trial court was bound to follow a 2005 Third District decision on the issue, Cicairos v. Summit Logistics, Inc. Plaintiffs argued that Cicairos held that employers have “an affirmative obligation” to ensure that workers are actually relieved of duty during their meal periods. However, the trial court was not persuaded, stating that “Cicairos appears to me to be a minority view adopted by one court when a number of courts have taken the Brinkley/Brinker view and analysis and it seems stronger to me.” However, in January 2009 matters became even more uncertain when the Supreme Court granted review in Brinker, seemingly erasing the basis for the trial court’s ruling.
In March 2009, plaintiffs appealed. On February 16, 2011, the Court of Appeal issued its published decision, affirming the trial court’s denial of class certification, and addressing several important issues.
First, the Court of Appeal held that the trial court’s finding that common issues did not predominate over individual issues was supported by substantial evidence and must therefore be affirmed. The Court of Appeal observed that the trial court’s findings “coincide with the common-sense notion that individual questions about the reasons an employee might not take a meal period are more likely to predominate if the employer need only offer meal periods, but need not ensure employees take those periods.”
Second, the Court of Appeal concluded that the trial court correctly ruled that California law does not require that employers ensure that employees actually take meal periods. In support of this conclusion, the court cited the ordinary dictionary meaning of “provide,” which means “to supply or make available.” The Court of Appeal distinguished Cicairos, explaining that that employer’s practices in that case had effectively denied employees the opportunity to take meal periods, and thus meal periods had not been provided.
Third, the Court of Appeal ruled that the trial court had not acted improperly in relying on Brinkley, since that decision had not been depublished until after the trial court had issued its ruling denying class certification. The Court of Appeal observed that although Brinker and Brinkley were no longer citable, the trial court found the analysis of the law in those cases “more persuasive than Cicairos.” The Court of Appeal found no impropriety in this approach.
Finally, the Court of Appeal rejected the argument, often made by plaintiffs, that the trial court’s ruling was improper because it decided the law governing meal periods and thereby looked into the merits of the plaintiffs’ claims. The Court of Appeal explained that the trial court’s examination of the law governing the nature of Tenet’s obligation to provide meal periods was proper because the analysis went to the court’s framing of the issues to be tried, so that it could determine whether common issues would predominate over individual issues, a prerequisite to class certification. Because this determination could not be made without consideration of the law that would govern those issues, the trial court did not overstep its authority in examining the substantive law.
The key question at the moment is whether the California Supreme Court will grant review of the Tien decision, which would render the decision non-citable. The Supreme Court has granted review of several post-Brinker decisions that have interpreted the extent of an employer’s obligation to provide meal periods to its employees, and it would not be surprising for it to do so in this case. In the meantime, the Tien case provides some hope to employers.