Smart employers know having written employee policies is good business.
But who would have thought the absence of a written policy – when the law does not require one – could create liability for employers? And when that lack of a written policy can result in class action liability it’s best to sit up and take notice.
Common Uniform Policies Under Brinker
In Brinker, the California Supreme Court reiterated a common uniform policy is sufficient to support a class action. In Brinker the employer’s rest period policy was written. And it was unlawful on its face.
The written policy in Brinker allowed a 10 minute rest period “for each four hours” worked. California law requires employers provide a 10 minute rest period “per four (4) hours worked or major fraction thereof.”
Since a “major fraction thereof” of 4 hours means greater than 2 hours, Brinker’s policy violated the law by limiting rest periods to one per “each four hours” worked when two rest periods would be required for say a 6.5 hour shift that didn’t last 8 full hours.
The Brinker rule is unremarkable. After all that’s the point of a class action, common proof of a uniform unlawful practice makes the employer liable to the entire class of employees whose rights have been violated.
Can “No Policy” Be Common and Uniform Proof Of Liability?
The lack of a policy is certainly common and uniform. By definition a “lack of” anything is both “common” and “uniform.” You either have it or you don’t.
But is that what Brinker means? Can the absence of a rest or meal period policy – when none is required by law – possibly be unlawful and because it is “common” and “uniform” support class action liability?
Apparently, at least one California court thinks so.
Benton v. Telecom Network Specialists, Inc.
In Benton, the attorney representing the employee class argued the defendant employer’s “failure to adopt any policy authorizing and permitting [employees] their meal and rest breaks constituted a class-wide violation.” The trial court disagreed that a failure to adopt any policy constituted a class-wide violation. This seems both logical and obvious.
But the Benton court relying on Brinker reversed the trial court and left the door open that somehow “no policy” can be the basis for class-wide liability.
That’s like saying having no policy prohibiting unlawful discrimination can somehow give rise to class-wide liability on gender or race discrimination. Or having no policy requiring payment of overtime is common and uniform proof that the law was violated.
Thankfully, at least one federal district court has rejected the “no policy” creates liability concept: Bellinghausen v. Tractor Supply Co. (Nov. 15, 2013).
In Bellinghausen, also a rest period class action, plaintiff’s class counsel tried to extend Benton. Class counsel argued the employer’s policy that was otherwise lawful on its face was somehow unlawful because the policy didn’t set forth the details of rest period law under Brinker. The federal judge in Bellinghausen soundly rejected that idea.
Since the plaintiff in Bellinghausen had no other basis upon which to assert a common and uniform policy to support class liability, the judge dismissed the rest period class claims outright.
Have a written rest and meal period policy. It makes sense and has always made sense irrespective of the peculiar risk raised by Benton. And this goes for other employment policies. It’s best to have them in writing. An employee handbook is a good place to house them.