Signature LineIn Walgreen Co. Overtime Cases, ___ Cal.App.4th ___  (November 13, 2014), the California Court of Appeal (Second Appellate District, Division One) affirmed the order of the Los Angeles County Superior Court (Judge West) denying class certification to employees who were claimed they were not provided with meal periods at work.

Plaintiffs were employees of defendant employer who claimed that, although defendant’s stated policy on meal breaks was proper, the company’s actual and widespread practice departed from its stated policy in an illegal way.  In their motion for class certification, plaintiffs relied on three different types of evidence: an expert opinion, emails, and declarations.  The trial court found each of these categories to be insufficient, however, and denied the motion. Plaintiffs appealed.

The appellate court agreed and affirmed the denial of class certification.  First, the appellate court determined, the trial court had applied the correct legal standard when examining defendant’s duty to provide meal periods.  That is, consistent with the California Supreme Court’s holding in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012), defendant was required only to “make available” meal periods to its employees, not “ensure” that the meal periods were taken. Second, the court agreed that plaintiff’s evidence was insufficient.  Plaintiff’s expert witness declaration indicated that he had analyzed payroll data to discover how often workers did not take their meal breaks, assuming (incorrectly) under the “ensure” standard that there was a Labor Code violation every time a worker did not take a timely break. Similarly, the e-mails of defendant’s corporate executives regarding meal breaks did not show that the company pressured employees to skip their meal periods.  “They show the opposite: [defendant] pressuring store managers to ensure employees took meal breaks. The emails show respect for workers’ rights, not pressure against them.”  Finally, the court agreed that the (mostly identical) form declarations plaintiffs submitted in support of their motion should be accorded no weight because they were unreliable. “Most deposition witnesses recanted their declarations to some degree or entirely. The prevalence of falsity in the declarations raised questions about how [plaintiffs’] lawyers had created these declarations in the first place.”