Contributed by Kershaw, Cutter & Ratinoff Attorney, Ian M. Hunter
On September 27, 2010, the 9th Circuit issued an opinion in the case of Wang v. Chinese Daily News, No. 08-55483, a case brought by California-based employees of a Chinese-language newspaper for violation of the Fair Labor Standards Act (“FLSA”) and California wage and hour law. The District Court had certified the FLSA claim as a collective action and further certified the California claims under Rule 23(b)(2) and 23(b)(3). The District Court had granted partial summary judgment to the plaintiffs, held jury and bench trials and entered judgment for the plaintiffs. The employer, CDN appealed, challenging aspects of each ruling by the District Court and the jury’s verdict.
In affirming the judgment of the District Court, the 9th Circuit made several key holdings that California wage and hour practitioners may find interesting. One in particular stands out, as wage and hour lawyers wait for the California Supreme Court to rule in Brinker and Brinkley and face arguments that class certification should be delayed or denied until those rulings.
In Wang, as in many wage and hour cases, one key issue was what it means for an employer to “provide” a meal break under California Labor Code section 512(a). As the Wang court noted:
A pair of cases now pending in the California Supreme Court present the question whether employers need only “provide” meal breaks in the sense that they do not impede their employees from taking such breaks, or whether employers have an affirmative obligation to ensure that workers are actually relieved of all duties during a meal period.
In arguing either side of this particular issue, practitioners may have a tendency to make the issue black or white, as if the California Supreme Court’s only choice is between two extremes. I.e., plaintiffs argue that it is ludicrous for employers to think that so long as they post a compliant meal break policy, they need make no further efforts to make those breaks available to employees; defendants, on the other hand, argue that employers should not be required to force employees to take those breaks. Of course, the answer likely falls somewhere in between, as the court in Wang held. Employers do have a minimal obligation to make breaks available, and that is unlikely to be impacted by the ultimate ruling in Brinker and Brinkley. The Court in Wang found:
Even if the California Supreme Court interprets California law to place only minimal obligations on employers, the evidence presented to the jury was sufficient to support a finding that CDN did not “provide” reporters with meal breaks. The evidence showed that reporters did not have time to take meal breaks because they worked long, harried hours and faced tight deadlines. There was testimony that reporters were required to carry pagers all the time and be on call from morning until night without ever getting a sustained off-duty period. The evidence showed that reporters did not keep time cards and that pay stubs did not reflect time actually worked. Several reporters also testified that they could rarely take uninterrupted 30 minute breaks. CDN never told reporters that meal breaks were available and never told them to keep track of meal breaks on a time card. In short, reporters could not take daily, uninterrupted 30 minute breaks regardless of whether they desired to do so. Under either possible reading of California Labor Code § 512(a), CDN did not “provide” its reporters with meal breaks. Substantial evidence therefore supports the jury’s verdict.
In an environment where employee scheduling is less structured than in many other workplaces, the 9th Circuit held that the employer cannot take an entirely “hands-off” approach to meal breaks. At the very least, “provide” means the employer must take some action to make it realistically possible for employees to take daily, uninterrupted 30-minute meal breaks. In the Wang scenario, this may mean, at a minimum, the employer must ensure that reporters have sufficient time before deadlines to accomplish all work tasks and have 30 uninterrupted minutes for a break and that on-call reporters have at least 30 uninterrupted minutes off-call. In a more rigid employment relationship, where employees are on-duty until relieved, this may entail ensuring that “workers are actually relieved of all duties during a meal period.”
What this all means practically for litigants in wage and hour class actions is that Brinker and Brinkley may not possess the talismanic significance we tend to attribute to them. The California Supreme Court is likely to offer a nuanced and fact-based understanding of “provide” under the Labor Code, one which neither employers nor employees will be able to wield as a club in all cases. Moreover, unless the question is a close one in any particular pending class action, there is not necessarily any need to wait for the Brinker and Brinkley opinions. Employers do have an affirmative obligation to make meal periods realistically available to employees.
 See Brinker Rest. Corp. v. Super. Ct., 165 Cal. App. 4th 25 (2008), review granted, 196 P.2d 216 (Cal. Oct. 22, 2008); Brinkley v. Pub. Storage, Inc., 167 Cal. App. 4th 1278, 1290 (2008), review granted, 198 P.3d 1087 (Cal. Jan. 14, 2009).
 Wang (slip opinion) at 16410, citing Brinkley, Brinker, and Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4th 1286, 1303 (2010).
 Wang (slip opinion) at 16410-11.
 See Jaimez, 181 Cal. App. 4th at 1303; Cicaros v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962.