306 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 238 See, e.g., Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 941 (2016) (reversing order decertifying class of security guards claiming a denial of meal periods; plaintiffs could pursue a theory that liability had resulted “from Wackenhut’s policy of requiring all employees to sign on-duty meal agreements and allowing client preference to dictate whether an employee had an off-duty or on-duty meal period, rather than itself determining, as the employer, whether the nature of the work at each site prevented its employees from having an off-duty meal period”); Faulkinbury v. Boyd & Assocs., Inc., 216 Cal. App. 4th 220, 234 (2013) (disapproved of on other grounds by Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955, 986 n.15 (2019)) (directing trial court to grant certification on meal-period claim by security guards: “by requiring blanket off-duty meal break waivers in advance from all security guard employees, regardless of the working conditions at a particular station, [the employer] treated the off-duty meal break issue on a classwide basis”). 239 L’Chaim House, Inc. v. DLSE, 38 Cal. App. 5th 141, 144 (2019) (affirming DLSE’s citation to employer for failing to provide meal periods; “an on-duty meal period is not the functional equivalent of no meal period at all. On-duty meal periods are an intermediate category requiring more of employees than off-duty meal periods but less of employees than their normal work.”). 240 IWC Wage Orders § 11(A); Lab. Code § 512(a). 241 Ehret v. WinCo Foods, LLC, 26 Cal. App. 5th 1, 9 (2018). (affirming summary judgment to employer; rejecting plaintiffs’ argument that a meal period waiver cannot be enforced unless it uses “the word ‘waiver,’ or ‘waived,’ or ‘waiving’”). 242 IWC Wage Orders § 11(B); Lab. Code § 512(a) (neither Wage Order nor statute requires a writing). 243 Gerard v. Orange Coast Mem’l Med. Ctr. (“Gerard I”), 234 Cal. App. 4th 285 (2015), review granted, No. S225205 (Cal. May 20, 2015) (agreeing to decide (1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512, subdivision (a)? (2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively?). 244 SB 327, amending Lab. Code § 516 (stating “the healthcare employee meal period waiver provisions ... were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable”). 245 No. 225205 (Aug. 17, 2016) (remanding case with directions to vacate its decision and to reconsider the cause in light of the enactment of Statutes 2015, chapter 505 (Sen. Bill No. 327 (2015-2016 Reg. Sess.)). 246 Gerard v. Orange Coast Mem’l Med. Ctr. (“Gerard II”), 9 Cal. App. 5th 1204, 1214 (2017) (affirming denial of class certification and summary judgment to employer; “[W]e hold Senate Bill 327 represents a clarification of the law before our decision in Gerard I, consistent with our reconsidered view above, rather than a change in the law.”). 247 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1040-41 ( 2012) (holding that “absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work and that “Wage Order No. 5 does not impose additional timing requirements”; “[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay … .”). 248 Carrington v. Starbucks Corp., 30 Cal. App. 5th 504, 524 (2018) (affirming denial of summary judgment to employer and affirming PAGA judgment in favor of employee). 249 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 69-70 (2021) (reversing summary judgment to employer). 250 Lab. Code § 512(a). 251 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 963 (2005) (reversing summary judgment to employer; “employers have an ‘affirmative obligation to ensure that workers are actually relieved of all duty’”) (citing DLSE Opinion Letter 2002.01.28, at 1). 252 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1040-41 (2012) (“the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations”). With Brinker, the California Supreme Court joined the overwhelming weight of federal case law on this point of California law. See, e.g., Brown v. Federal Express Corp., 249 F.R.D. 580, 585 (C.D. Cal. 2008) (denying class certification and rejecting argument that employers must ensure that employees take breaks); Gabriella v. Wells Fargo Fin., Inc., 2008 WL 3200190 (N.D. Cal. Aug. 28, 2008) (denying motion for class certification while applying standard that employers need only make break periods available to its employees); Perez v. Safety-Kleen Sys., Inc., 253 F.R.D. 508, 514 (N.D. Cal. 2008) (granting motion for summary judgment in part, denying plaintiffs’ motion for class certification, and applying the “make available” standard); Salazar v. Avis Budget Grp., 251 F.R.D. 529 (S.D. Cal. 2008) (denying motion for class certification because class members could not show they were forced to miss breaks); Kenny v. Supercuts, 252 F.R.D. 641, 645 (N.D. Cal. 2008) (same). 253 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1040 (2012) (“Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay.”). 254 Esparza v. Safeway, Inc., 36 Cal. App. 5th 42 (2019). 255 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 61 (2021) (reversing summary judgment to employer; holding “that time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage”). 256 Id. at 77-78. 257 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 61 (2021) (reversing summary judgment to employer; holding “that employers cannot engage in the practice of rounding time punches—that is, adjusting the hours that an employee has actually worked to the nearest preset time increment—in the meal period context. The meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.”). 258 Donohue v. AMN Servs., LLC, 29 Cal. App. 5th 1068 (2018) (rejecting argument that rounding policy could not apply to meal period punches; trial court need only consider how often policy results in rounding up and down; rejecting argument that plaintiff often got short
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