In the few weeks since the decision in Brinker v. Superior Court, two court decisions that we know of have invoked the elements of Brinker in their discussions.  In the first case, the court in Schulz v. Qualxserve, LLC granted class certification to a group of field technicians who service and repair computers and are paid on a piece-rate basis.  Plaintiffs had made a variety of wage and hour claims, including missed meal and rest periods.  The employer argued that there was no evidence that it deprived employees of meal and rest periods as a general policy, and therefore class certification of these claims should be denied because individual questions would predominate over a common issue. 

While acknowledging that the Brinker decision held that employers are not required to ensure that employees take meal and rest breaks,  the Court reiterated the holding that employers are required to ensure that employees are relieved of all duties.  Because the plaintiffs were challenging the employers common general policy of not relieving employees of all duties during rest and meal periods, they met the standard for showing that common issues would predominate for these claims, and the Court certified the class.  Importantly, the Court noted that in Brinker class certification for the rest period claims was upheld because plaintiffs had challenged a uniform policy, similar to this case. 

In the second case, Benton v. Taninco, the Court denied Plaintiffs’ motion for class certification in a suit for misclassification and missed meal and rest periods.  The Court stated that Plaintiffs were unable to establish uniformity of policies or circumstances at the individual work locations, citing statements from the court in Brinker regarding the analysis of whether common issues predominate in determining liability.  Additionally, class certification was inappropriate in this case because, again citing Brinker, some of the employees had been provided all that was necessary in terms of proper meal and rest breaks: the chance to take them. 

So, what do these cases teach us about the effects of Brinker?  First, class certification of meal and rest periods will be difficult where the employer can show that some of the employees were provided their breaks as required under Brinker.  Second, it certainly seems that Brinker will be cited to support class certification of meal and rest period claims when there are common policies or practices that  interfere with employees being able to take a "bona fide" meal or rest period. 

While this has been said many times already since Brinker came out, employers should examine their policies and practices to be sure they mirror the requirements stated in that decision.  Scheduling practices should be re-evaluated if there is a possibility that they could be seen as preventing an employee from being relieved of all duties during the meal period.  Plaintiffs in missed meal and rest period claims will be more closely scrutinizing the workflow and scheduling to try to point out general issues that support class certification.