Litigating California Wage & Hour and Labor Code Class Actions

The implications are significant for class actions because it is much more difficult for
plaintiffs to argue that common issues predominate in a case if the employer can defend
itself merely by establishing that individual employees have had a bona fide opportunity to
take a meal break. By contrast, under the “mandatory” interpretations, the employer is very
limited in its ability to raise individualized issues as to why the employees failed to take their
meal breaks. If they failed to do so a jury could assess on a collective basis whether the
employer made sufficient efforts to force them to take the meal period and enter a verdict
for the class if the employer’s efforts were inadequate.
Aside from the issue of class action liability, a “mandatory” interpretation would also require
employers to overhaul oversight of employee meal breaks. In order to comply with the law,
employers would have to implement systems to ensure employees take a full thirty-minute
break. Employers would need to upgrade timekeeping systems and even discipline
employees for not taking a full meal period. Without oversight, opportunistic employees
might take a twenty-five minute break and then later claim an hour’s worth of pay, because
the break did not last the mandated thirty minutes.
For years, the only published California decision to address the issue was Cicairos v.
Summit Logistics, Inc. 130 The Cicairos decision held that an employer has an “affirmative
obligation to ensure that workers are actually relieved of all duty” by taking a meal break.
The Cicairos court further held that an employer cannot simply “assum[e] that the meal
periods are taken.” 131 The court suggested that the standard for meal periods was akin to
the standard of when an employer must pay overtime—i.e., when it either suffered or
permitted the employee to work. The court found that the defendant did not “provide” meal
breaks, because the plaintiff-truckers were deprived of a meaningful ability to elect to take
breaks due to pressure from management to maximize deliveries, the lack of a
companywide policy on meal periods, and the fact that the plaintiffs would be penalized for
taking meal breaks as the timekeeping system was unable to record meal breaks. 132
The Cicairos court did not define the scope of “relieving employees of all duty” and the term
is subject to multiple possible interpretations. What if the employer scheduled a period
each day within which the employee was told that he or she had no duty to perform any
work? That sounds like it amounts to “relieving” the employee of duty, and an employee
who chooses to work in that situation would have no claim for meal period penalty pay.
What if the employee worked without supervision, the employer instructed the employee to
take meal periods, and the employee failed to notify the employer that he had skipped meal
breaks? These facts would seem to indicate that the employer neither “suffered nor
130
131
132
133 Cal. App. 4th 949 (2005).
Id. at 962.
Id. at 964.
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