Court of Appeal Issues Additional Decision Holding An Employer Is Required To Make Meal Periods Available But Is Not Required To Ensure Employees Take Their Meal Periods

Today, in Kevin Tien v. Tenet Healthcare Corporation, et al., the California Court of Appeal affirmed the trial court's denial of class certification of the plaintiff's claims and held an employer's obligation to "provide" non-exempt employees all meal periods required by Labor Code section 512 and by the applicable Industrial Welfare Commission Wage Order means the employer is required to make such meal periods available and is not required to ensure the employees take the meal periods made available to them.  

As part of its decision regarding the plaintiff employees' meal period claims, the court held substantial evidence supported the trial court's decision that class certification would not be appropriate because individual issues of fact predominated over common issues of fact and because class treatment would not be superior because "there are numerous and substantial questions affecting each class member's right to recover, following determination of liability to the the class as a whole." The court explained 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."  The court reached a similar conclusion regarding the plaintiffs' rest period claims, and stated, "Given that Tenant was obligated only to offer rest breaks, liability arose for Tenet only if its policy was a policy in name only and not observed in practice."

In addition, the court held substantial evidence supported the trial court's denial of class certification of the plaintiffs' claims for allegedly non-compliant wage statements, quoting with approval the trial court's determination that, "[t]he Court would have to determine whether each individual class member actually suffered injury or damages as a result of the pay stubs lacking the information required under the Labor Code . . . . Such highly individualized determinations would render the class mechanism impracticable . . . ."  

Unfortunately, we think the California Supreme Court will very likely grant review of this decision pending its long awaited decision in Brinker Restaurant Corp. v. Superior Court which would make today's decision uncitable. As we previously reported here, the Supreme Court has granted review of every other post Brinker Court of Appeal decision holding an employer is required to make meal periods available but is not required to ensure employees take the meal periods made available to them. 

We are continuing to closely follow this developing area of the law and will report further significant developments as they occur. 

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