In re Walgreen Co. Overtime Cases: Court of Appeal Affirms Denial of Certification in Meal Period Class Action

In In re Walgreen Co. Overtime Cases (10/23/14, pub. 11/13/14) --- Cal.App.4th ---, the plaintiffs sought to certify a class of hourly employees on the theory that Walgreens propounded a lawful meal period policy, but in practice Walgreens failed to provide its employees with compliant meal periods. The trial court denied their motion for class certification, and the Court of Appeal affirmed, holding as follows: 

The trial court held that employers must make meal periods available, but need not ensure that their employees actually take those meal periods. Slip op. at 3-6. The trial court thus predicted the eventual holding in Brinker Restaurant Corp. v. Superior Court (2013) 53 Cal.4th 1004, and used the proper criteria to analyze the motion. 

The evidence on certification demonstrated that Walgreens made meal periods available, but that its employees sometimes decided to skip or delay them. Slip op. at 4. The plaintiffs' evidence to the contrary failed to convince the trial court otherwise. 

The plaintiffs introduced expert witness testimony regarding the rate at which Walgreens' time records showed a missed or late meal period. Slip op. at 6. The trial court properly rejected this evidence because it relied on the faulty assumption that every such instance represented a violation of the meal period requirement. 

The plaintiffs introduced emails among Walgreens management regarding missed meal periods, but the emails showed the "significant importance Walgreens attached to the meal break issue and the efforts of Walgreens to provide meal breaks to all employees." Slip op. at 7-8. Rather than showing Walgreens pressuring employees to skip meal periods, the emails showed Walgreens pressuring its management to ensure that meal periods were taken. 

Finally, the plaintiffs introduced employee declarations stating that meal periods were not made available. Slip op. at 8-10. The declarations were unreliable, and numerous employees recanted them in deposition, raising questions about how counsel created them in the first place. 

The opinion is available here.