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Harvey Sohnen
Works at Law Offices of Sohnen & Kelly
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Class Action Certifications after the Brinker case

Was California’s Brinker case a win for employees or employers?
Following the long awaited unanimous decision of the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, on April 12, 2012, both employee-side and employer-side advocates immediately each claimed victory. They have done so, not just in the Brinker case itself, but in the cases that followed, that applied the law involving the scope of the employer’s duty in California, to provide an uninterrupted thirty minute duty free meal period to employees who work more than five hours, and under what circumstances an additional hour of pay is to be assessed in favor of the employee when meal periods were missed.

There was a lot of press coverage for an employment law question, and it was mostly very superficial. For example, the morning after Brinker, I was conducting some depositions out of town, turned on the television in my hotel room, and heard a one sentence statement about the Brinker decision on Good Morning America.

While Brinker dealt with a number of issues involving meal breaks, rest breaks, and claims for failure to pay employees for work done “off-the-clock,” a core question is whether cases seeking class action status on claims of meal break and/or rest break law violations will be certified in light of Brinker.  Focusing on that core question, we’ve done a tally of the court decisions on class certification in the first four months following the Brinker decision… and here it is:

We found 11 cases:

In six of these cases, the employee’s request to certify a meal and/or rest claim as a class action lawsuit was granted in whole or part. These decisions usually rested on a determination that there were common issues of law and fact about the employer’s policies and practices. Four of these came from California state courts- San Mateo, San Francisco, two from Los Angeles, and two from federal courts, in Sacramento, and San Diego.
In five of these cases, the employee’s request regarding certifying meal or rest break claims as a class action lawsuit was denied in its entirety. All of these came from Los Angeles- three from state court and two from federal court.

The Brinker case also included a concurring opinion signed by Justices Werdegar and Liu, which goes further for employees than the main unanimous opinion on some issues, including about how employees can prove their cases, and the consequences of an employer’s failure to record meal periods taken. There has been some discussion about how much force an opinion signed by two justices has as a practical matter. The jury may still be out on that point, but so far, one federal judge, the Honorable Dean D. Pregerson of the Central District, has issued an opinion agreeing with the Brinker concurrence that it is the employer’s burden to rebut a presumption that meal periods were not adequately provided, where the employer fails to record any meal periods.

Four months down the road after Brinker, the head count shows there are some wins and losses on both sides. The employees have a little bit of an edge on the rulings so far. The one sentence story I heard on Good Morning America, that went something like “In California, the state supreme court ruled yesterday that employers don’t have to ensure that their employees have lunch breaks” was a wee bit of an oversimplification.

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Introduction
Harvey Sohnen graduated from Columbia University, and then earned a Master’s Degree at the Massachusetts Institute of Technology. After his initial training in math and science, Harvey decided to apply his skills as an advocate and attended law school at the University of California at Berkeley.

His initial work as a lawyer was in the field of public interest law, as a legal services attorney. During these years, he was significantly involved in class actions concerning employment law and constitutional law.

25 Years Experience as a Civil Litigator in Contra Costa County

After his legal services experience, Harvey established his law practice in California’s Contra Costa County where he has been located since 1985. Harvey’s particular field of interest in law practice during this period has been civil litigation, with an emphasis on employment law and commercial law.  His practice includes handling class actions and complex litigation.

Harvey has been a frequent writer on legal topics.  He has served as the principal editor of the Contra Costa County Bar Association’s monthly magazine, the Contra Costa Lawyer. He has been quoted in a front page article on employment law in the Wall Street Journal and has been a frequent speaker at continuing education programs.  His professional memberships include the State Bar of California, California Employment Lawyers Associations and the Contra Costa County Bar Association.

Bragging rights
Speaking Engagements: “Employee and Employers Disability Tricks and Traps” to Contra Costa County Bar Association Employment Law Section, September 22, 2010 (with Phyllis Cheng, Chief Counsel for State of California, Department of Fair Employment and Housing); “Disability Discrimination in Employment” to Contra Costa County Bar Association Annual CLE Program, 2004; “Ethical Issues in Employment Law” to Contra Costa County Bar Association Employment Law Section, 2002
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