Brinker Restaurant Corp. v. Superior Court made it clear that California employers do not have to police meal and rest periods, so it would seem they have a safe harbor so long as employees have the freedom to take meal and rest breaks, right? Not only that, Brinker cited (albeit in a footnote) the same commentator (Professor Richard Nagareda) as the U.S. Supreme Court did in Wal-Mart Stores, Inc. v. Dukes for the proposition that “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.” Given the convergence of Brinker and Dukes on the basic elements required for class certification, wouldn’t it be reasonable for California courts to follow the Supreme Court’s opinion in Comcast Corp. v. Behrend denying class certification where individual damages issues would overwhelm issues common to the class?

Not so fast. In Benton v. Telecom Network Specialists, Inc. the California Court of Appeal for the Second Appellate District  reversed  the trial court’s denial of class certification on meal period, rest period, and overtime claims and joined Bradley v. Networkers International and Faulkinbury v. Boyd & Associates, two other published California appellate court decisions that have applied Brinker for the following proposition: class certification is appropriate simply based on a uniform lack of a California-compliant meal and rest period policy. 

The facts in Benton provided a legitimate basis for the employer to argue against class certification, and in fact the employer’s argument succeeded at the trial court level. The putative class included 750 cell-phone tower technicians who worked at various sites owned by cell phone service providers. The work sites at issue were many and diverse, as were the policies in place. Some companies for whom the technicians provided services had their own meal and rest break and overtime policies, which only applied to technicians who worked at those sites. The employer provided declarations from technicians who stated they took – and were told by their supervisors to take – meal and rest breaks. A company witness testified that technicians decided on “an individual basis” how and when to take meal breaks.

The plaintiff in the case argued that the pace of work, and the resulting pressure put on employees, prevented them from taking lawful meal and rest breaks. More significantly, the plaintiff argued, the employer’s lack of an express California-compliant meal and rest break policy and its failure to keep records of employee meal breaks was unlawful and created liability, regardless of the extent to which individuals did or did not take meal or rest breaks at any particular work location.     

The trial court denied certification, rejecting the notion that an employer’s failure to adopt an express California-compliant policy authorizing meal and rest breaks constituted evidence of a class-wide violation. The trial court concluded that, under Brinker, employee “liberty” to take meal and rest breaks was more important than whether the employer had promulgated an express California-compliant policy, reasoning as follows: “At many of these places, the putative class members effectively worked as their own bosses when it came to meal and rest breaks. In other words, no one was around to tell them when to work or when to break – they were at liberty to do as they pleased. Whether there were break violations turns on specific details about what happened at each specific site[.]”

In contrast, the appellate court held, in line with Bradley and Faulkinbury, that an employer violates the law on a class-wide basis through a failure to “authorize and permit” meal and rest periods if the employer cannot demonstrate that it promulgated an express California-compliant meal and rest break policy and took steps to ensure employees were aware of that policy. Benton went so far as to hold that the employer could be liable even to those of its employees who provided services to a company that had adopted a lawful meal and rest break policy, because the employer itself had not issued an express California-compliant policy. The court engaged in only a brief discussion of the overtime issue, reversing the trial court’s denial of certification on similar grounds – that the employer offered no evidence of a company-wide policy to ensure that its employees were paid for all overtime hours worked.

It appears to be highly questionable whether the teaching of Brinker and the mandate of Dukes and Comcast on class certification were applied correctly in Benton. However, Benton makes clear that a prudent employer should formulate and publish to its employees an express policy conforming with California’s meal and rest period requirements.