Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—N.D. Cal.: Restaurant employees denied certification of class action challenging employer’s meal break practices, (Feb 7, 2025)

By Ronald Miller, J.D.

The employer asserted that its restaurants are not too busy, outside of peak hours, for its employees to take breaks, regardless of staffing level.

Restaurant workers were denied a motion for class certification of Rule 23 class action alleging that their employer unlawfully prevented them from taking unpaid 30-minute meal breaks, ruled a federal district court in California. While there was a common question: does the Donohue presumption apply to the class members’ meal period claims, it seems clear that the rebuttal portion of the trial will be dominated by individual liability questions that are specific to particular restaurants, particular categories of workers, and particular workers within each category (Hale v. Brinker International, Inc., No. 21-cv-09978-VC (N.D. Cal. Feb. 6, 2025)).

Meal break violations. The plaintiffs in this action are two former employees of a restaurant employer that operated a number of Chili’s Bar and Grills. They sued the owner of the restaurants where they worked, alleging that it violated California labor law by: (1) failing to give employees a reasonable opportunity to take unpaid meal breaks; (2) failing to provide rest periods; and (3) refusing to pay for employees’ cell phone operating expenses related to their work. They brought their suit as a proposed class action.

According to the employees, the employer created a system that denies employees the opportunity to take meal and rest breaks—the restaurants are busy and leanly staffed, the employees are required to ask managers for meal and rest breaks, and management discourages them from taking those breaks.

Both employees submitted declarations in support of class certification. In addition, the plaintiffs’ counsel compiled declarations from 15 other proposed class members, all Chili’s workers from different restaurant locations. The declarations allege that employees were almost never provided with a 30-minute meal period because the restaurant was busy but too understaffed for employees to take breaks.

The employer contended that the missed meal periods simply reflected the realities of the restaurant industry—occasionally workers take their unpaid meal breaks, but typically they prefer not to. To support its position, the employer offered over 50 declarations from Chili’s workers. It also submitted declarations from managers.

Rest periods. As for the 10-minute rest periods, the employer’s employee declarants also consistently asserted that they have the opportunity to take them, and that the reasons for not taking a rest break can vary.

Lean staffing. With respect to the issue of lean staffing and busy periods, the employer contended that this did not preclude employees from taking breaks because business fluctuates throughout the day. In support of this contention, the employer’s expert analyzed customer volume at different restaurants and explained that, although there were certain peak hours in the day with high volume, the volume fluctuates throughout the day and varies among restaurants. The employer thus asserted that its restaurants are not too busy, outside of those peak hours, for its employees to take breaks, regardless of staffing level.

Cell phone expense. Finally, with respect to cell phone usage, the employees contended that proposed class members used their personal cell phones to communicate with management and coworkers about work, without any reimbursement from the employer for expenses related to that cell phone usage. In addition, they asserted that employees were required to buy and use a scheduling app on personal cell phones to review shift schedules and request shift changes.

The employer responded that there was no policy requiring employees to download the scheduling app on their personal phones, and any download was a personal choice by that employee. It also stated that employees can use iPads at work to check their schedules.

Class certification. The employees moved for class certification of a proposed class consisting of both front-of-house workers and back-of-house workers. They contended that liability can be determined on a classwide basis because of the employer’s system of staffing restaurants leanly, requiring employees to ask managers for a break, and creating an atmosphere of discouraging people from taking such breaks, applies to everyone. They seek class certification on all three of their claims—for meal period violations, rest period violations, and cell phone expenses.

Meal break claim. Under California law, an employee is entitled to a 30-minute unpaid meal period for any shift longer than five hours, and a second 30-minute unpaid meal period for any shift longer than 10 hours. But employees are not required by law to take unpaid meal periods; if they prefer to keep working (and keep getting paid), they can do that, so long as the employer has provided the opportunity in the first instance, Donohue v. AMN Services, LLC, 11 Cal. 5th 58, 67 (2021).

As an initial matter, the court concluded that class certification was not warranted for the meal break claim. There was a common question: does the Donohue presumption apply to the class members’ meal period claims, given the percentage of shifts where the time records do not reflect an unpaid meal break (and without any indication that the employee voluntarily chose to skip the break)? But based on the record developed in connection with this class certification motion, it seemed clear to the court that the rebuttal portion of the trial will be dominated by individual liability questions that are specific to particular restaurants, particular categories of workers, and particular workers within each category.

Rest period claim. California law also provides employees who work more than a three-and-a-half hour shift a 10-minute rest period for every four-hour block (or a major portion thereof) of that shift. Employers are required to provide a reasonable opportunity for a rest period, but an employee may choose to work through it.

Here, the court determined that the employees’ rest period class cannot be certified because the plaintiffs have not demonstrated that common questions predominate with respect to the employer’s liability. They have not carried their burden of establishing that the employer had a uniform policy that tended to deny its employees the ability to take breaks.

Cell phone claims. “[W]hen employees must use their personal cell phones for work-related calls, [California] Labor Code section 2802 requires the employer to reimburse them.” “If the use of the personal cell phone is mandatory, then reimbursement is always required, regardless of whether the employee would have incurred cell phone expenses absent the job.”

In this instance, the employees failed to provide evidence sufficient to conclude that common questions existed as to whether the employer violated section 2802. As to the charges related to the scheduling app, the employees failed to establish that there was an employer policy requiring employees to purchase the app.

Accordingly, the employees’ motion for class certification was denied.

The case is No. 21-cv-09978-VC.

Judge: Chhabria, V.

Attorneys: Chaim Shaun Setareh (Law Office of Shaun Setareh) for Amanda Hale. Laura Ann Pierson-Scheinberg (Jackson Lewis) for Brinker International, Inc.

Companies: Brinker International, Inc.

Cases: WageHour ClassActions WorkingTime CaliforniaNews