1

Filed 4/12/12

IN THE SUPREME COURT OF CALIFORNIA

BRINKER RESTAURANT )

CORPORATION et al., )

)

Petitioners, ) S166350

)

v. ) Ct.App. 4/1 D049331

)

THE SUPERIOR COURT OF )

SAN DIEGO COUNTY, ) San Diego County

) Super. Ct. No. GIC834348

Respondent; )

)

ADAM HOHNBAUM et al., )

)

Real Parties in Interest. )

____________________________________)

For the better part of a century, California law has guaranteed to employees 

wage and hour protection, including meal and rest periods intended to ameliorate 

the consequences of long hours. For most of that time, only injunctive remedies 

were available for violations of meal and rest period guarantees. In 2000, 

however, both the Legislature and the Industrial Welfare Commission (IWC) 

adopted for the first time monetary remedies for the denial of meal and rest breaks. 

(Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105-1106.) 

These remedies engendered a wave of wage and hour class action litigation, 

including the instant suit in which the trial court granted class certification and the 

Court of Appeal then issued writ relief and ordered three subclasses decertified.
2

We granted review to consider issues of significance to class actions 

generally and to meal and rest break class actions in particular. We conclude, 

contrary to the Court of Appeal, that trial courts are not obligated as a matter of 

law to resolve threshold disputes over the elements of a plaintiff‟s claims, unless a 

particular determination is necessarily dispositive of the certification question. 

Because the parties have so requested, however, we nevertheless address several 

such threshold disputes here. On the most contentious of these, the nature of an 

employer‟s duty to provide meal periods, we conclude an employer‟s obligation is 

to relieve its employee of all duty, with the employee thereafter at liberty to use 

the meal period for whatever purpose he or she desires, but the employer need not 

ensure that no work is done.

On the ultimate question of class certification, we review the trial court‟s 

ruling for abuse of discretion. In light of the substantial evidence submitted by 

plaintiffs of defendants‟ uniform policy, we conclude the trial court properly 

certified a rest break subclass. On the question of meal break subclass 

certification, we remand to the trial court for reconsideration. With respect to the 

third contested subclass, covering allegations that employees were required to 

work “off-the-clock,” no evidence of common policies or means of proof was 

supplied, and the trial court therefore erred in certifying a subclass. Accordingly, 

because the Court of Appeal rejected certification of all three subclasses, we will 

affirm in part, reverse in part, and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendants Brinker Restaurant Corporation, Brinker International, Inc., and 

Brinker International Payroll Company, L.P. (collectively Brinker), own and 

operate restaurants throughout California, including Chili‟s Grill & Bar and 

Maggiano‟s Little Italy. Brinker previously has owned and operated additional 

chains in California, including Romano‟s Macaroni Grill, Corner Bakery Cafe,
3

Cozymel‟s Mexican Grill, and On the Border Mexican Grill & Cantina. Name 

plaintiffs Adam Hohnbaum, Illya Haase, Romeo Osorio, Amanda June Rader, and 

Santana Alvarado (collectively Hohnbaum) are or were hourly nonexempt 

employees at one or more of Brinker‟s restaurants.

State law obligates employers to afford their nonexempt employees meal 

periods and rest periods during the workday. (See Lab. Code, §§ 226.7, 512; IWC 

wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050); hereafter Wage Order 

No. 5.)1 Labor Code section 226.7, subdivision (a)2 prohibits an employer from 

requiring an employee “to work during any meal or rest period mandated by an 

applicable order of the Industrial Welfare Commission.” In turn, Wage Order 

No. 5, subdivision 12 prescribes rest periods, while subdivision 11, as well as 

section 512 of the Labor Code, prescribes meal periods. Employers who violate 

these requirements must pay premium wages. (§ 226.7, subd. (b); Wage Order 

No. 5, subds. 11(B), 12(B); see Murphy v. Kenneth Cole Productions, Inc., supra, 

40 Cal.4th at p. 1114.)

In 2002, the Division of Labor Standards Enforcement (DLSE) launched an 

investigation into whether Brinker was complying with its obligations to provide 

rest and meal breaks, maintain proper records, and pay premium wages in the 

event required breaks were not provided. The DLSE filed suit and eventually 

settled in exchange for Brinker‟s payment of $10 million to redress injuries 

 

1 The IWC issues wage orders on an industry-by-industry basis. (Martinez v. 

Combs (2010) 49 Cal.4th 35, 57.) Wage Order No. 5 governs restaurant 

employees, inter alia, while other wage orders impose similar meal and rest period 

requirements for all other nonexempt employees in California. (See generally Cal. 

Code Regs., tit. 8, §§ 11010-11170.)

2 All further statutory references are to the Labor Code unless otherwise 

specified.
4

suffered by employees between 1999 and 2001 and the stipulation to a courtordered injunction to ensure compliance with meal and rest break laws. In 

connection with the settlement, Brinker disclaimed all liability.

In the aftermath of the DLSE‟s suit, Hohnbaum filed this putative class 

action, seeking to represent the cooks, stewards, buspersons, wait staff, host staff, 

and other hourly employees who staff Brinker‟s restaurants. The operative 

complaint, the first amended complaint, alleges in its first cause of action that 

Brinker failed to provide employees the rest breaks, or premium wages in lieu of 

rest breaks, due them under law. (See § 226.7; Wage Order No. 5, subd. 12.) The 

second cause of action alleges Brinker failed to provide employees the meal 

breaks, or premium wages in lieu of meal breaks, required by law. (See §§ 226.7, 

512; Wage Order No. 5, subd. 11.) In the course of litigation, two distinct theories 

underlying the meal break claim have emerged: (1) Brinker provided employees 

fewer meal periods than required by section 512 and Wage Order No. 5; and 

(2) Brinker sometimes required “early lunching,” a single meal period soon after 

the beginning of a work shift followed by six, seven, eight, or more hours without 

an additional meal period. Finally, Hohnbaum contends Brinker required 

employees to work off-the-clock during meal periods and engaged in time 

shaving, unlawfully altering employee time records to misreport the amount of 

time worked and break time taken.3

 

3 This claim is not expressly set forth in the complaint, but the trial court 

approved a stipulated amendment deeming the complaint to include allegations 

that employees worked off the clock during meal periods and Brinker engaged in 

time shaving.
5

In aid of a court-ordered mediation, the parties stipulated to the trial court‟s 

resolving the legal issue central to the early lunching theory: whether state law 

imposes timing requirements on when a meal period must be provided and, if so, 

what it requires. Hohnbaum contended governing law obligates an employer to 

provide a 30-minute meal period at least once every five hours. Brinker countered 

that no such timing obligation is imposed, and an employer satisfies its meal 

period obligations by providing one meal period for shifts over five hours and two 

meal periods for shifts over 10 hours.

The trial court generally agreed with Hohnbaum, holding that an 

employer‟s obligations are not satisfied simply by affording a meal period for each 

work shift longer than five hours, and that affording a meal period during the first 

hour of a 10-hour shift, with nothing during the remaining nine hours, would 

violate the obligation to provide a meal period for each five-hour work period. 

This advisory opinion subsequently was confirmed as a court order. Brinker filed 

a writ petition in the Court of Appeal, which was denied.

Hohnbaum then moved for class certification, defining the class as “[a]ll 

present and former employees of [Brinker] who worked at a Brinker owned 

restaurant in California, holding a non-exempt position, from and after August 16, 

2000.”4 The class definition included several subclasses, three of which are 

pertinent here: (1) a “ „Rest Period Subclass‟ ” comprising all “Class Members 

who worked one or more work periods in excess of three and a half (3.5) hours 

without receiving a paid 10 minute break during which the Class Member was 

relieved of all duties, from and after October 1, 2000”; (2) a “ „Meal Period 

 

4 The putative class is estimated to include just under 60,000 Brinker 

employees.
6

Subclass‟ ” covering all “Class Members who worked one or more work periods 

in excess of five (5) consecutive hours, without receiving a thirty (30) minute meal 

period during which the Class Member was relieved of all duties, from and after 

October 1, 2000”; and (3) an “ „Off-The-Clock‟ Subclass” for all “Class Members 

who worked „off-the-clock‟ or without pay from and after August 16, 2000.”

Hohnbaum argued class certification was warranted because, inter alia, 

common legal and factual issues predominated. He contended Brinker applied 

common meal and rest break policies to all nonexempt employees, the legality of 

these common policies was most appropriately decided on a classwide basis, and 

computer shift records maintained by Brinker could be used to identify violations 

and establish classwide liability. Hohnbaum supported the motion with numerous 

declarations from proposed class members asserting that Brinker had failed to 

provide individuals with meal and rest breaks or provided breaks at allegedly 

improper times during the course of an employee‟s work shift. He also submitted 

survey evidence of ongoing meal and rest break violations even after settlement 

with the DLSE.

Brinker opposed class certification, arguing that individual issues 

predominated. Specifically, Brinker argued that a rest break subclass should not 

be certified because an employer‟s obligation is simply to permit such breaks to be 

taken, as Brinker did, and whether employees in fact chose to take such breaks is 

an individualized inquiry not amenable to class treatment. Brinker contended a

meal period subclass should not be certified because an employer is obliged only 

to make meal breaks available and need not ensure that employees take such 

breaks. Brinker asserted it had complied with its legal obligation to make meal 

breaks available, many employees took those breaks, and inquiry into why 

particular employees did not take meal breaks raised individual questions 

precluding class treatment. Brinker also contended plaintiffs‟ early lunching 
7

claims were legally unfounded and, in any event, individual issues again 

predominated, rendering the meal period claims unsuitable for litigation on a class 

basis. Finally, Brinker argued the off-the-clock subclass should not be certified 

because no Brinker policy permitted such alteration of time records, Brinker did 

not suffer or permit off-the-clock work, and any such off-the-clock work would 

require individualized employee-by-employee proof. Brinker submitted hundreds 

of declarations in support of its opposition to class certification.

Following a full hearing, the trial court granted class certification, finding 

that common issues predominated over individual issues: “[C]ommon questions 

regarding the meal and rest period breaks are sufficiently pervasive to permit 

adjudication in this one class action. [¶] [Brinker‟s] arguments regarding the 

necessity of making employees take meal and rest periods actually point[] toward 

a common legal issue of what [Brinker] must do to comply with the Labor Code. 

Although a determination that [Brinker] need not force employees to take breaks 

may require some individualized discovery, the common alleged issues of meal 

and rest violations predominate.” A class proceeding was also superior: 

“Adjudicating plaintiffs‟ allegations in one litigation” would be “much more 

efficient” than resolving it in 60,000 separate administrative or judicial 

proceedings, as Brinker had suggested.

The Court of Appeal granted writ relief and reversed class certification as 

to the three disputed subclasses. We granted review to resolve uncertainties in the 

handling of wage and hour class certification motions.

DISCUSSION

I. Class Certification Principles

Originally creatures of equity, class actions have been statutorily embraced 

by the Legislature whenever “the question [in a case] is one of a common or 

general interest, of many persons, or when the parties are numerous, and it is 
8

impracticable to bring them all before the court . . . .” (Code Civ. Proc., § 382; see 

Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1078; City of San Jose v. 

Superior Court (1974) 12 Cal.3d 447, 458.) Drawing on the language of Code of 

Civil Procedure section 382 and federal precedent, we have articulated clear 

requirements for the certification of a class. The party advocating class treatment 

must demonstrate the existence of an ascertainable and sufficiently numerous 

class, a well-defined community of interest, and substantial benefits from 

certification that render proceeding as a class superior to the alternatives. (Code 

Civ. Proc., § 382; Fireside Bank, at p. 1089; Linder v. Thrifty Oil Co. (2000) 23 

Cal.4th 429, 435; City of San Jose, at p. 459.) “In turn, the „community of interest 

requirement embodies three factors: (1) predominant common questions of law or 

fact; (2) class representatives with claims or defenses typical of the class; and 

(3) class representatives who can adequately represent the class.‟ ” (Fireside 

Bank, at p. 1089, quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 

470.)

Here, only a single element of class suitability, and a single aspect of the 

trial court‟s certification decision, is in dispute: whether individual questions or 

questions of common or general interest predominate. The “ultimate question” the 

element of predominance presents is whether “the issues which may be jointly 

tried, when compared with those requiring separate adjudication, are so numerous 

or substantial that the maintenance of a class action would be advantageous to the 

judicial process and to the litigants.” (Collins v. Rocha (1972) 7 Cal.3d 232, 238; 

accord, Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) 

The answer hinges on “whether the theory of recovery advanced by the proponents 

of certification is, as an analytical matter, likely to prove amenable to class 

treatment.” (Sav-On, at p. 327.) A court must examine the allegations of the 

complaint and supporting declarations (ibid.) and consider whether the legal and 
9

factual issues they present are such that their resolution in a single class 

proceeding would be both desirable and feasible.5 “As a general rule if the 

defendant‟s liability can be determined by facts common to all members of the 

class, a class will be certified even if the members must individually prove their 

damages.” (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 

916; accord, Knapp v. AT&T Wireless Services, Inc. (2011) 195 Cal.App.4th 932, 

941.)

On review of a class certification order, an appellate court‟s inquiry is 

narrowly circumscribed. “The decision to certify a class rests squarely within the 

discretion of the trial court, and we afford that decision great deference on appeal, 

reversing only for a manifest abuse of discretion: „Because trial courts are ideally 

situated to evaluate the efficiencies and practicalities of permitting group action, 

they are afforded great discretion in granting or denying certification.‟ [Citation.] 

A certification order generally will not be disturbed unless (1) it is unsupported by 

substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous 

legal assumptions. [Citations.]” (Fireside Bank v. Superior Court, supra, 40 

Cal.4th at p. 1089; see also Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 

Cal.App.3d 462, 472 [“So long as [the trial] court applies proper criteria and its 

action is founded on a rational basis, its ruling must be upheld.”].) Predominance 

is a factual question; accordingly, the trial court‟s finding that common issues 

predominate generally is reviewed for substantial evidence. (Sav-On Drug Stores, 

 

5 As one commentator has put it, “what really matters to class certification” 

is “not similarity at some unspecified level of generality but, rather, dissimilarity 

that has the capacity to undercut the prospects for joint resolution of class 

members‟ claims through a unified proceeding.” (Nagareda, Class Certification in 

the Age of Aggregate Proof (2009) 84 N.Y.U. L.Rev. 97, 131.)
10

Inc. v. Superior Court, supra, 34 Cal.4th at pp. 328-329.) We must “[p]resum[e] 

in favor of the certification order . . . the existence of every fact the trial court 

could reasonably deduce from the record . . . .” (Id. at p. 329.)

The appellate judgment reversing certification rests on two separate 

grounds. First, the Court of Appeal held the trial court committed error per se by 

ruling on certification without first resolving legal disputes over the scope of 

Brinker‟s duties to provide meal and rest periods. Second, it held that any court, 

upon resolving those disputes, could only have concluded certification was 

inappropriate. We consider the first of these grounds in part II., post, and the 

second of them in parts IV. through VI., post. As we shall explain, the first 

ground does not support the judgment, while the second supports it only partially.

II. Class Certification and Disputes over a Claim’s Elements

The trial court concluded it could certify a class without resolving disputes 

over the scope of Brinker‟s duty to provide breaks because common questions 

would predominate even if Brinker‟s legal positions were correct. According to 

the Court of Appeal, this was error: the trial court “was required to determine the 

elements of plaintiffs‟ claims” because the court “could not determine whether 

individual or common issues predominate in this case, and thus whether a class 

action was proper, without first determining this threshold issue.” While we agree 

trial courts must resolve any legal or factual issues that are necessary to a 

determination whether class certification is proper, the Court of Appeal went too 

far by intimating that a trial court must as a threshold matter always resolve any 

party disputes over the elements of a claim. In many instances, whether class 

certification is appropriate or inappropriate may be determined irrespective of 

which party is correct. In such circumstances, it is not an abuse of discretion to 

postpone resolution of the disputed issue.
11

“The certification question is „essentially a procedural one that does not ask 

whether an action is legally or factually meritorious.‟ ” (Sav-On Drug Stores, Inc. 

v. Superior Court, supra, 34 Cal.4th at p. 326, quoting Linder v. Thrifty Oil Co., 

supra, 23 Cal.4th at pp. 439-440; see also Eisen v. Carlisle & Jacquelin (1974) 

417 U.S. 156, 178 [“ „In determining the propriety of a class action, the question is 

not whether the plaintiff or plaintiffs have stated a cause of action or will prevail 

on the merits, but rather whether the requirements of [class certification] are 

met.‟ ”].) A class certification motion is not a license for a free-floating inquiry 

into the validity of the complaint‟s allegations; rather, resolution of disputes over 

the merits of a case generally must be postponed until after class certification has 

been decided (Fireside Bank v. Superior Court, supra, 40 Cal.4th at pp. 1083-

1086), with the court assuming for purposes of the certification motion that any 

claims have merit (Linder, at p. 443).

We have recognized, however, that “issues affecting the merits of a case 

may be enmeshed with class action requirements . . . .” (Linder v. Thrifty Oil Co., 

supra, 23 Cal.4th at p. 443; see also Wal-Mart Stores, Inc. v. Dukes (2011) 564 

U.S. ___, ___ [131 S.Ct. 2541, 2551] [analysis of a class certification‟s propriety 

“[f]requently . . . will entail some overlap with the merits of the plaintiff‟s 

underlying claim. That cannot be helped.”]; Coopers & Lybrand v. Livesay (1978) 

437 U.S. 463, 469, fn. 12 [“ „Evaluation of many of the questions entering into 

determination of class action questions is intimately involved with the merits of 

the claims.‟ ”].) When evidence or legal issues germane to the certification 

question bear as well on aspects of the merits, a court may properly evaluate them. 

(Wal-Mart Stores, 131 S.Ct. at pp. 2551-2552 & fn. 6; Ghazaryan v. Diva 

Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1531; Caro v. Proctor & Gamble 

Co. (1993) 18 Cal.App.4th 644, 656.) The rule is that a court may “consider[] 

how various claims and defenses relate and may affect the course of the litigation” 
12

even though such “considerations . . . may overlap the case‟s merits.” (Fireside 

Bank v. Superior Court, supra, 40 Cal.4th at p. 1092; see Szabo v. Bridgeport 

Machines, Inc. (7th Cir. 2001) 249 F.3d 672, 676 [if the considerations necessary 

to certification “overlap the merits . . . then the judge must make a preliminary 

inquiry into the merits”].)

In particular, whether common or individual questions predominate will 

often depend upon resolution of issues closely tied to the merits. (Coopers & 

Lybrand v. Livesay, supra, 437 U.S. at p. 469, fn. 12; Linder v. Thrifty Oil Co., 

supra, 23 Cal.4th at p. 443.) To assess predominance, a court “must examine the 

issues framed by the pleadings and the law applicable to the causes of action 

alleged.” (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at 

p. 916.) It must determine whether the elements necessary to establish liability are 

susceptible of common proof or, if not, whether there are ways to manage 

effectively proof of any elements that may require individualized evidence. (See 

Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334.) In turn, 

whether an element may be established collectively or only individually, plaintiff 

by plaintiff, can turn on the precise nature of the element and require resolution of 

disputed legal or factual issues affecting the merits. For example, whether reliance 

or a breach of duty can be demonstrated collectively or poses insuperable 

problems of individualized proof may be determinable only after closer inspection 

of the nature of the reliance required or duty owed and, in some instances, 

resolution of legal or factual disputes going directly to the merits. (See, e.g., Erica 

P. John Fund, Inc. v. Halliburton Co. (2011) 563 U.S. ___, ___ [131 S.Ct. 2179, 

2184-2186]; Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829-

831.)

Such inquiries are closely circumscribed. As the Seventh Circuit has 

correctly explained, any “peek” a court takes into the merits at the certification 
13

stage must “be limited to those aspects of the merits that affect the decisions 

essential” to class certification. (Schleicher v. Wendt (7th Cir. 2010) 618 F.3d 

679, 685.) While the Schleicher defendants urged that the trial court had erred by 

failing to resolve disputes over the falsity and materiality of their statements, the 

Seventh Circuit affirmed class certification without inquiry into such matters, 

concluding no element of the certification determination hinged on their 

resolution. (Ibid.) Likewise, in Jaimez v. Daiohs USA, Inc. (2010) 181 

Cal.App.4th 1286, 1303-1305, the Court of Appeal reversed the trial court‟s 

refusal to certify a wage and hour class without deciding contested legal issues 

concerning the defendant‟s meal break policy because common questions 

predominated in any event. (See also Medrazo v. Honda of North Hollywood

(2008) 166 Cal.App.4th 89, 97-98 [trial court erred in resolving the merits of an 

affirmative defense divorced from consideration of the specific criteria for class 

certification].)

We summarize the governing principles. Presented with a class 

certification motion, a trial court must examine the plaintiff‟s theory of recovery, 

assess the nature of the legal and factual disputes likely to be presented, and 

decide whether individual or common issues predominate. To the extent the 

propriety of certification depends upon disputed threshold legal or factual 

questions, a court may, and indeed must, resolve them. Out of respect for the 

problems arising from one-way intervention, however, a court generally should 

eschew resolution of such issues unless necessary. (See Fireside Bank v. Superior 

Court, supra, 40 Cal.4th at p. 1074; Schleicher v. Wendt, supra, 618 F.3d at 

p. 685.) Consequently, a trial court does not abuse its discretion if it certifies (or 

denies certification of) a class without deciding one or more issues affecting the 
14

nature of a given element if resolution of such issues would not affect the ultimate 

certification decision.6

In support of its conclusion that a trial court must always first decide upon 

the applicable law and resolve legal issues surrounding each element of a proposed 

class claim, the Court of Appeal relied principally on our decision in Washington 

Mutual Bank v. Superior Court (2001) 24 Cal.4th 906. We disagree with the 

Court of Appeal‟s reading of our decision. In Washington Mutual, the plaintiffs 

sought certification of a nationwide class. Although members of the plaintiff class 

were subject to choice-of-law agreements, the trial court granted certification 

without first determining whether the agreements were enforceable and would 

result in the application of different state laws, and whether any applicable state 

laws varied in ways that would render the class proceeding unmanageable. We 

reversed, explaining that it was not possible to intelligently assess predominance 

and the manageability of claims asserted on behalf of nonresidents without those 

determinations. (Washington Mutual, at pp. 915, 922, 927-928.) Washington 

Mutual involves an unexceptional application of the principles we have 

articulated: if the presence of an element necessary to certification, such as 

predominance, cannot be determined without resolving a particular legal issue, the 

trial court must resolve that issue at the certification stage. That the failure to 

 

6 See also, e.g., In re Initial Public Offering Securities Lit. (2d Cir. 2006) 471 

F.3d 24, 41 (endorsing similar principles under Fed. Rules Civ.Proc., rule 23, 28 

U.S.C.); Gariety v. Grant Thornton, LLP (4th Cir. 2004) 368 F.3d 356, 365-367 

(same); Nagareda, Class Certification in the Age of Aggregate Proof, supra, 84 

N.Y.U. L.Rev. at page 114 (under federal law, a “court must inquire into the 

merits . . . if that inquiry pertains to the satisfaction of a [Fed. Rules Civ.Proc.,] 

Rule 23 requirement,” but “oversteps its proper bounds if it conducts” a “freefloating merits inquiry . . . untethered to a Rule 23 requirement.”).
15

resolve disputed legal issues affecting the elements of a claim is always reversible 

error does not follow.

III. Wage Orders and the Labor Code

We turn to the Court of Appeal‟s alternate basis for reversing class 

certification—that if one considers the substance of the parties‟ various legal 

disputes and the elements of Hohnbaum‟s claims, one must conclude as a matter 

of law that common questions do not predominate. In assessing that conclusion, at 

the parties‟ request we examine the merits of their substantive legal disputes. (See 

Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443 [“[W]e see nothing to prevent 

a court from considering the legal sufficiency of claims when ruling on 

certification where both sides jointly request such action.”].) Because those 

disputes derive in part from conflicting visions of the respective roles statutes and 

wage orders play in establishing the state‟s wage and hour law, we begin by 

examining those roles.

Nearly a century ago, the Legislature responded to the problem of 

inadequate wages and poor working conditions by establishing the IWC and 

delegating to it the authority to investigate various industries and promulgate wage 

orders fixing for each industry minimum wages, maximum hours of work, and 

conditions of labor. (Martinez v. Combs, supra, 49 Cal.4th at pp. 52-55; see Cal. 

Const., art. XIV, § 1 [confirming the Legislature‟s authority to establish a 

commission and grant it legislative and other powers over such matters].) 

Pursuant to its “broad statutory authority” (Industrial Welfare Com. v. Superior 

Court (1980) 27 Cal.3d 690, 701), the IWC in 1916 began issuing industry- and 

occupationwide wage orders specifying minimum requirements with respect to 

wages, hours, and working conditions (id. at p. 700). In addition, the Legislature 

has from time to time enacted statutes to regulate wages, hours, and working 

conditions directly. Consequently, wage and hour claims are today governed by 
16

two complementary and occasionally overlapping sources of authority: the 

provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage 

orders, adopted by the IWC. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1084; 

see IWC wage order Nos. 1-2001 to 17-2001 and MW-2007 (Cal. Code Regs., 

tit. 8, §§ 11000-11170).)

We apply the usual rules of statutory interpretation to the Labor Code, 

beginning with and focusing on the text as the best indicator of legislative purpose. 

(Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1103.) “[I]n 

light of the remedial nature of the legislative enactments authorizing the regulation 

of wages, hours and working conditions for the protection and benefit of 

employees, the statutory provisions are to be liberally construed with an eye to 

promoting such protection.” (Industrial Welfare Com. v. Superior Court, supra, 

27 Cal.3d at p. 702; see also Murphy, at p. 1103 [given the Legislature‟s remedial 

purpose, “statutes governing conditions of employment are to be construed 

broadly in favor of protecting employees.”].)

In turn, the IWC‟s wage orders are entitled to “extraordinary deference, 

both in upholding their validity and in enforcing their specific terms.” (Martinez 

v. Combs, supra, 49 Cal.4th at p. 61.) When a wage order‟s validity and 

application are conceded and the question is only one of interpretation, the usual 

rules of statutory interpretation apply. (Collins v. Overnite Transportation Co.

(2003) 105 Cal.App.4th 171, 178-179; see Cal. Drive-in Restaurant Assn. v. Clark

(1943) 22 Cal.2d 287, 292.) As with the Labor Code provisions at issue, the meal

and rest period requirements we must construe “have long been viewed as part of 

the remedial worker protection framework.” (Murphy v. Kenneth Cole 

Productions, Inc., supra, 40 Cal.4th at p. 1105.) Accordingly, the relevant wage 

order provisions must be interpreted in the manner that best effectuates that 

protective intent. (Martinez, at pp. 61-62; see Industrial Welfare Com. v. Superior 
17

Court, supra, 27 Cal.3d at p. 724; Bono Enterprises, Inc. v. Bradshaw (1995) 32 

Cal.App.4th 968, 974.)

The IWC‟s wage orders are to be accorded the same dignity as statutes. 

They are “presumptively valid” legislative regulations of the employment 

relationship (Martinez v. Combs, supra, 49 Cal.4th at p. 65), regulations that must 

be given “independent effect” separate and apart from any statutory enactments 

(id. at p. 68). To the extent a wage order and a statute overlap, we will seek to 

harmonize them, as we would with any two statutes. (Cal. Drive-in Restaurant 

Assn. v. Clark, supra, 22 Cal.2d at pp. 292-293.)

Here, Wage Order No. 5, governing the public housekeeping industry, 

applies.7 We consider in turn both the scope of the duties it and several related 

statutes (see §§ 226.7, 512, 516) impose on restaurant employers to afford rest and 

meal periods, and whether in light of those duties the Court of Appeal erred in 

reversing as an abuse of discretion the trial court‟s certification of three 

subclasses.8

IV. Rest Period Class Certification

A. The Scope of an Employer’s Duty to Provide Rest Periods

Preliminary to its assessment of the trial court‟s certification of a rest period 

subclass, the Court of Appeal addressed two threshold legal questions: the amount 

 

7 By its terms, Wage Order No. 5 expressly covers restaurant employees such 

as Hohnbaum and the proposed class members. (See Wage Order No. 5, 

subd. 2(P)(1).)

8 We observe that because the IWC‟s funding was restricted in 2004 (see 

Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1102, fn. 4), the 

agency has been rendered essentially unavailable in recent years to cast light on 

the intended significance of its wage orders.
18

of rest time that must be authorized, and the timing of any rest periods. We 

consider these same two questions.

1. The rate at which rest time must be authorized and permitted

Brinker‟s rest period duties are defined solely by Wage Order No. 5, 

subdivision 12. To determine the rate at which rest time must be authorized, we 

begin, as always, with the text. (See Reynolds v. Bement, supra, 36 Cal.4th at 

p. 1086 [“The best indicator of [the IWC‟s] intent is the language of the [wage 

order] provision itself.”].) Subdivision 12(A) provides in relevant part: “Every 

employer shall authorize and permit all employees to take rest periods, which 

insofar as practicable shall be in the middle of each work period. The authorized 

rest period time shall be based on the total hours worked daily at the rate of ten 

(10) minutes net rest time per four (4) hours or major fraction thereof. However, a 

rest period need not be authorized for employees whose total daily work time is 

less than three and one-half (31⁄2) hours.”

The text of the wage order is dispositive; it defines clearly how much rest 

time must be authorized. Under Wage Order No. 5, subdivision 12(A)‟s second 

sentence, employees receive 10 minutes for each four hours of work “or major 

fraction thereof.” Though not defined in the wage order, a “major fraction” long 

has been understood—legally, mathematically, and linguistically—to mean a 

fraction greater than one-half.9 The term “majority fraction” was first introduced 

 

9 See, e.g., Department of Commerce v. Montana (1992) 503 U.S. 442, 450-

451; Hovet v. Myers (Or. 1971) 489 P.2d 684, 685-686; 7 C.F.R. § 1205.322(b)(1) 

(2012); Balinski and Young, The Quota Method of Apportionment, 82 American 

Mathematical Monthly 701, 704 (Aug.-Sept. 1975); Oxford English Dictionary 

Online (3d ed. 2000; online version Mar. 2012) <http://oed.com/view/Entry/

112621> (as of Apr. 12, 2012) (“major” is that which “constitutes the majority or 

larger part; usually with part, portion, or other similar nouns”).
19

in 1947 and then amended to “major fraction” in 1952;10 the contemporaneous 

historical evidence suggests the IWC in the 1940‟s understood the term in just

such a sense. (See, e.g., IWC meeting minutes (June 14, 1943) p. 22 [interpreting 

“ „any fraction of fifteen minutes‟ ” to mean “the majority fraction thereof, or 

eight minutes or more”]). The Division of Labor Standards Enforcement (DLSE) 

has so interpreted the phrase as well, construing “major fraction thereof” as 

applied to a four-hour period to mean any amount of time in excess of two 

hours—i.e., any fraction greater than half. (Dept. Industrial Relations, DLSE 

Opinion Letter No. 1999.02.16 (Feb. 16, 1999) p. 1.)11

It follows that Wage Order No. 5, subdivision 12(A)‟s second sentence 

defines the rest time that must be permitted as the number of hours worked divided 

by four, rounded down if the fractional part is half or less than half and up if it is 

more (a “major fraction”), times 10 minutes. Thus, under the initial calculation 

called for by this part of the wage order, an employee would receive no rest break 

time for shifts of two hours or less, 10 minutes for shifts lasting more than two 

hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 

hours, and so on.

 

10 IWC wage order No. 5 R, subdivision 11 (June 1, 1947); IWC wage order 

No. 5-52, subdivision 12 (Aug. 1, 1952).

11 “The DLSE „is the state agency empowered to enforce California‟s labor 

laws, including IWC wage orders.‟ ” (Morillion v. Royal Packing Co. (2000) 22 

Cal.4th 575, 581.) The DLSE‟s opinion letters, “ „ “ „while not controlling upon 

the courts by reason of their authority, do constitute a body of experience and 

informed judgment to which courts and litigants may properly resort for 

guidance.‟ ” ‟ ” (Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 

369, fn. 5; see Morillion, at p. 584 [relying on DLSE opinion letters to inform its 

interpretation of the IWC‟s wage orders].)
20

Though under the basic calculation the right to 10 minutes‟ rest would 

accrue for any shift lasting more than two hours, the third sentence of Wage Order 

No. 5‟s rest period subdivision modifies this entitlement slightly. Under the third 

sentence, “a rest period need not be authorized for employees whose total daily 

work time is less than three and one-half (31⁄2) hours.” (Wage Order No. 5, 

subd. 12(A).) Thus, employees working shifts lasting over two hours but under 

three and one-half hours, who otherwise would have been entitled to 10 minutes‟ 

rest, need not be permitted a rest period. The combined effect of the two pertinent 

sentences, giving full effect to each, is this: Employees are entitled to 10 minutes‟ 

rest for shifts from three and one-half to six hours in length, 20 minutes for shifts 

of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours 

up to 14 hours, and so on.

The Court of Appeal, however, construed the third sentence of the 

subdivision as supplying the definition of “major fraction thereof,” reasoning that 

otherwise the three and one-half hour proviso and the preceding language would 

be irreconcilable. In its view, employees are entitled to 10 minutes‟ rest for shifts 

of three and one-half hours or more, to 20 minutes‟ rest for shifts of seven and 

one-half hours or more, and so on. An employee working a seven-hour shift thus 

would be entitled to only 10 minutes‟ rest.

This reading cannot be reconciled with either the wage order‟s text or its 

adoption history. First, the express language of the three and one-half hour 

proviso speaks only to the circumstance where an employee‟s “total daily work 

time is less than three and one-half (31⁄2) hours” (Wage Order No. 5, subd. 12(A), 

italics added); it does not speak to the circumstance where an employee‟s total 

daily work time is less than seven and one-half hours, or less than 111⁄2 hours. 

“[M]ajor fraction” can be applied to, and must be defined for, each four-hour 

period, not just the first four hours of an employee‟s shift: How much time must 
21

be worked to earn a second 10 minutes, or a third? What does it mean to work 

four hours plus a “major fraction” of another four hours? The three and one-half 

hour proviso cannot answer those questions.

Second, the Court of Appeal‟s interpretation disregards the use of the word 

“However” at the beginning of the three and one-half hour proviso, which signals 

that what follows is a deviation from or exception to the previous rule, not an 

amplification of it. Though the Court of Appeal perceived an inconsistency, there 

is nothing inconsistent in reading the three and one-half hour proviso as a specific 

exception to the general rule that working for a “major fraction” of four hours is 

sufficient to entitle one to rest time: to earn the first 10 minutes, one must be 

scheduled for a work shift of at least three and one-half hours, while to earn the 

next 10 minutes, one must be scheduled to work four hours plus a major fraction, 

to earn the next, eight hours plus a major fraction, and so on.

The IWC‟s explanatory remarks at the time the three and one-half hour 

proviso was adopted reveal the proviso was intended as just such a limited 

exception: “ „The rest period provision was clarified to indicate that an employee 

working less than 31⁄2 hours for the entire day would not need to have a rest 

period.‟ ” (IWC meeting minutes (May 16, 1952) p. 34.) The three and one-half 

hour proviso thus was not inserted as a definition of the phrase “major fraction,” 

but simply as a limit on the shift length that would warrant any break at all.

Finally, the Court of Appeal attached great significance to a different 1952 

change, the substitution in the wage order of “major” for “majority,” but the two 

terms are essentially synonymous when used as modifiers, and the change appears 

to have been the product of an idiomatic choice, rather than an intended semantic 

distinction. (See also IWC wage order No. 5-57, subd. 15(a) (Nov. 15, 1957) 

[amending toilet requirements to mandate “one toilet for every twenty-five (25) 
22

female employees or major fraction thereof” in lieu of “. . . majority fraction 

thereof” with no evident change in meaning].)

Having resolved the amount of rest time an employer must authorize and 

permit, we turn to the question of when it must be afforded.

2. Rest period timing

Hohnbaum asserts employers have a legal duty to permit their employees a 

rest period before any meal period. Construing the plain language of the operative 

wage order, we find no such requirement and agree with the Court of Appeal, 

which likewise rejected this contention.

Wage Order No. 5, subdivision 12(A) provides in relevant part: “Every 

employer shall authorize and permit all employees to take rest periods, which 

insofar as practicable shall be in the middle of each work period.” Neither this 

part of the wage order nor subdivision 11, governing meal periods, speaks to the 

sequence of meal and rest breaks. The only constraint on timing is that rest breaks 

must fall in the middle of work periods “insofar as practicable.” Employers are 

thus subject to a duty to make a good faith effort to authorize and permit rest 

breaks in the middle of each work period, but may deviate from that preferred 

course where practical considerations render it infeasible. At the certification 

stage, we have no occasion to decide, and express no opinion on, what 

considerations might be legally sufficient to justify such a departure.

The difficulty with Hohnbaum‟s argument that we should read into the 

wage order an absolute obligation to permit a rest period before a meal period can 

be illustrated by considering the case of an employee working a six-hour shift. 

Such an employee is entitled (in the absence of mutual waiver) to a meal period 

(Wage Order No. 5, subd. 11(A)) and, as discussed above, to a single rest period. 

Either the rest period must fall before the meal period or it must fall after. Neither 
23

text nor logic dictates an order for these, nor does anything in the policies 

underlying the wage and hour laws12 compel the conclusion that a rest break at the 

two-hour mark and a meal break at the four-hour mark of such a shift is lawful, 

while the reverse, a meal break at the two-hour mark and a rest break at the fourhour mark, is per se illegal.

Hohnbaum seeks to overcome the lack of textual support for his position by 

offering a DLSE opinion letter interpreting the identical language in a different 

wage order. (Dept. Industrial Relations, DLSE Opinion Letter No. 2001.09.17 

(Sept. 17, 2001) [interpreting IWC wage order No. 16-2001 (Cal. Code Regs., 

tit. 8, § 11160)].) Responding to a hypothetical about an employer who affords 

employees a meal break at the five-hour mark of an eight-hour shift, the DLSE 

opined that “absent truly unusual circumstances,” placing both rest breaks before 

the meal break, and none after, would not comport with the wage order 

requirement that rest breaks “ „insofar as practicable, shall be in the middle of each 

work period.‟ ” (Opinion Letter No. 2001.09.17, at p. 4.) We have no reason to 

disagree with the DLSE‟s view regarding the scenario it considered, but that view 

does not establish universally the proposition that an employee‟s first rest break 

must always come sometime before his or her first meal break. Rather, in the 

context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on 

either side of the meal break. (Ibid.) Shorter or longer shifts and other factors that 

render such scheduling impracticable may alter this general rule.

 

12 See generally Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th 

at page 1113 (discussing the health and safety considerations behind meal and rest 

periods).
24

B. Certification of a Rest Period Subclass

In granting class certification, the trial court accepted without modification 

the proposed class and subclass definitions. The rest period subclass covers 

“Class Members who worked one or more work periods in excess of three and a 

half (3.5) hours without receiving a paid 10 minute break during which the Class 

Member was relieved of all duties, from and after October 1, 2000 („Rest Period 

Subclass‟).”

That the trial court did not apply improper criteria, i.e., decide certification 

on a basis other than whether superiority of the class action mechanism, 

commonality of issues, and other relevant factors had been shown, is undisputed. 

(See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 332; 

Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1451.) Nor, 

as we have discussed, was the trial court obligated as a matter of law to resolve all 

legal disputes concerning the elements of Hohnbaum‟s rest break claims before 

certifying a class. (Ante, pt. II.) Hence, the only remaining question is whether 

the court abused its discretion in concluding that common questions predominate. 

We conclude it did not.

The issue for the trial court was whether any of the rest break theories of 

recovery advanced by Hohnbaum were “likely to prove amenable to class 

treatment.” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at 

p. 327.) The complaint alleges Brinker failed “to provide rest periods for every 

four hours or major fraction thereof worked per day to non-exempt employees.” 

Though Hohnbaum briefs multiple theories of liability, to conclude class 

certification was not an abuse of discretion we need consider only one: the theory 

that Brinker adopted a uniform corporate rest break policy that violates Wage 

Order No. 5 because it fails to give full effect to the “major fraction” language of 

subdivision 12(A).
25

Hohnbaum presented evidence of, and indeed Brinker conceded at the class 

certification hearing the existence of, a common, uniform rest break policy. The 

rest break policy was established at Brinker‟s corporate headquarters; it is equally 

applicable to all Brinker employees. Under the written policy, employees receive 

one 10-minute rest break per four hours worked: “If I work over 3.5 hours during 

my shift, I understand that I am eligible for one ten minute rest break for each four 

hours that I work.”13 Classwide liability could be established through common 

proof if Hohnbaum were able to demonstrate that, for example, Brinker under this 

uniform policy refused to authorize and permit a second rest break for employees 

working shifts longer than six, but shorter than eight, hours. Claims alleging that a 

uniform policy consistently applied to a group of employees is in violation of the 

wage and hour laws are of the sort routinely, and properly, found suitable for class 

treatment. (See, e.g., Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th at 

pp. 1299-1305; Ghazaryan v. Diva Limousine, Ltd., supra, 169 Cal.App.4th at 

pp. 1533-1538; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 

1193, 1205-1208.)

In reversing class certification, the Court of Appeal concluded that because 

rest breaks can be waived—as all parties agree—“any showing on a class basis 

that plaintiffs or other members of the proposed class missed rest breaks or took 

shortened rest breaks would not necessarily establish, without further 

individualized proof, that Brinker violated” the Labor Code and Wage Order 

No. 5. This was error. An employer is required to authorize and permit the 

amount of rest break time called for under the wage order for its industry. If it 

 

13 Other evidence the trial court was entitled to credit suggested employees 

may not have been permitted even that much rest break time.
26

does not—if, for example, it adopts a uniform policy authorizing and permitting 

only one rest break for employees working a seven-hour shift when two are 

required—it has violated the wage order and is liable. No issue of waiver ever 

arises for a rest break that was required by law but never authorized; if a break is 

not authorized, an employee has no opportunity to decline to take it. As 

Hohnbaum pleaded and presented substantial evidence of a uniform rest break 

policy authorizing breaks only for each full four hours worked, the trial court‟s 

certification of a rest break subclass should not have been disturbed.

We observe in closing that, contrary to the Court of Appeal‟s conclusion, 

the certifiability of a rest break subclass in this case is not dependent upon 

resolution of threshold legal disputes over the scope of the employer‟s rest break 

duties. The theory of liability—that Brinker has a uniform policy, and that that 

policy, measured against wage order requirements, allegedly violates the law—is 

by its nature a common question eminently suited for class treatment. As noted, 

we have at the parties‟ request addressed the merits of their threshold substantive 

disputes. However, in the general case to prematurely resolve such disputes, 

conclude a uniform policy complies with the law, and thereafter reject class 

certification—as the Court of Appeal did—places defendants in jeopardy of 

multiple class actions, with one after another dismissed until one trial court 

concludes there is some basis for liability and in that case approves class 

certification. (See Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1078.) 

It is far better from a fairness perspective to determine class certification 

independent of threshold questions disposing of the merits, and thus permit 

defendants who prevail on those merits, equally with those who lose on the merits, 

to obtain the preclusive benefits of such victories against an entire class and not 

just a named plaintiff. (Id. at p. 1083.)
27

V. Meal Period Class Certification

As with the rest break subclass, the Court of Appeal addressed two 

threshold legal issues before assessing whether certification of a subclass was 

proper: (1) the nature of an employer‟s duty to provide employees with meal 

periods; and (2) the timing requirements applicable to the provision of meal 

periods. We likewise begin with these issues.

A. The Scope of the Employer Duty to Provide Meal Periods

1. The nature of the duty

We consider what it means for an employer to provide a nonexempt 

employee a meal period. Hohnbaum contends an employer is obligated to “ensure 

that work stops for the required thirty minutes.” Brinker, in a position adopted by 

the Court of Appeal, contends an employer is obligated only to “make available” 

meal periods, with no responsibility for whether they are taken. We conclude that 

under Wage Order No. 5 and Labor Code section 512, subdivision (a), an 

employer must relieve the employee of all duty for the designated period, but need 

not ensure that the employee does no work.

Historically, an employer‟s meal period obligations were governed solely 

by the language of the IWC‟s wage orders, and so we begin there. Under Wage 

Order No. 5, subdivision 11(A), “[n]o employer shall employ any person for a 

work period of more than five (5) hours without a meal period of not less than 30 

minutes” absent a mutual waiver in certain limited circumstances. The wage order 

employs no verb between “without” and “a meal period” (e.g., providing, 

requiring, offering, allowing, granting) to specify the nature of the employer‟s 

duty. Rather, the order identifies only the condition triggering the employer‟s duty 

(employment of any person for at least five hours) and the employee‟s 

concomitant entitlement (a meal period of at least 30 minutes).
28

In the absence of a verb, the key language giving content to the employer‟s 

duty comes from the wage order‟s further definition of what an employee is to 

receive. Under Wage Order No. 5, subdivision 11(A), “[u]nless the employee is 

relieved of all duty during a 30 minute meal period, the meal period shall be 

considered an „on duty‟ meal period and counted as time worked. An „on duty‟ 

meal period shall be permitted only when the nature of the work prevents an 

employee from being relieved of all duty and when by written agreement between 

the parties an on-the-job paid meal period is agreed to. The written agreement 

shall state that the employee may, in writing, revoke the agreement at any time.” 

Parsed, the order‟s text spells out the nature of “on duty” meal periods and 

the precise circumstances in which they are permitted. It follows that absent such 

circumstances, an employer is obligated to provide an “off duty” meal period. The 

attributes of such off duty meal periods are evident from the nature of their 

reciprocal, on duty meal periods. An on duty meal period is one in which an 

employee is not “relieved of all duty” for the entire 30-minute period. (Wage 

Order No. 5, subd. 11(A).) An off duty meal period, therefore, is one in which the 

employee “is relieved of all duty during [the] 30 minute meal period.” (Ibid., 

italics added.) Absent circumstances permitting an on duty meal period, an 

employer‟s obligation is to provide an off duty meal period: an uninterrupted 30-

minute period during which the employee is relieved of all duty.

The IWC‟s wage orders have long made a meal period‟s duty-free nature its 

defining characteristic. The 1943 version of the wage order governing restaurant 

employees first introduced the principle: “No employer shall employ any woman 

or minor for a work period of more than five (5) hours without an allowance of not 

less than thirty (30) minutes for a meal. If during such meal period the employee 

can not be relieved of all duties and permitted to leave the premises, such meal 

period shall not be deducted from hours worked.” (IWC wage order No. 5 NS, 
29

subd. 3(d) (June 28, 1943).) The 1947 wage order retained the duty-free concept, 

but more clearly specified the circumstances under which an employer would be 

excused from relieving an employee: “An „on duty‟ meal period will be permitted 

only when the nature of the work prevents an employee from being relieved of all 

duty, and such „on duty‟ meal period shall be counted as hours worked without 

deduction from wages.” (IWC wage order No. 5 R, subd. 10 (June 1, 1947).) In 

1963, the operative language was amended almost to its current form (IWC wage 

order No. 5-63, subd. 11(a) (Aug. 30, 1963)), save for the requirement that on duty 

meals be agreed to in writing, which was added in 1976 (IWC wage order No. 5-

76, subd. 11(A) (Oct. 18, 1976)).14

As the IWC explained plainly in 1979: “A „duty free‟ meal period is 

necessary for the welfare of employees. The section is sufficiently flexible to 

allow for situations where that is not possible,” i.e., by establishing conditions for 

an on duty meal period. “The Commission received no compelling evidence and 

concluded that there was no rationale to warrant any change in this section, the 

basic provisions of which date back more than 30 years.” (IWC statement as to 

the basis for wage order No. 5-80 (Sept. 7, 1979); accord, IWC statement as to the 

basis for wage order No. 5-89 (Sept. 7, 1989); IWC statement of findings in 

support of 1976 wage order revisions (Aug. 13, 1976) p. 14.)

The DLSE‟s contemporaneous opinion letters reflect the same 

understanding. In 1988, the DLSE noted it “has historically taken the position that 

 

14 We declared IWC wage order No. 5-76 invalid for failure to include an 

adequate statement of the basis (see California Hotel & Motel Assn. v. Industrial 

Welfare Com. (1979) 25 Cal.3d 200, 216; § 1177, subd. (b)), but the IWC 

thereafter cured the omission and reissued identical meal period language (see 

IWC statement as to the basis for wage order No. 5-80 (Sept. 7, 1979); IWC wage 

order No. 5-80, subd. (11)(A) (Jan. 1, 1980)).
30

unless employees are relieved of all duties and are free to leave the premises, the 

meal period is considered as „hours worked.‟ ” (Dept. Industrial Relations, DLSE 

Opinion Letter No. 1988.01.05 (Jan. 5, 1988) p. 1.) Three years later, in response 

to a question concerning employees working in the field free of direct supervision 

and control, it advised that if “the employee has a reasonable opportunity to take 

the full thirty-minute period free of any duty, the employer has satisfied his or her 

obligation. The worker must be free to attend to any personal business he or she 

may choose during the unpaid meal period.” (Dept. Industrial Relations, DLSE 

Opinion Letter No. 1991.06.03 (June 3, 1991) p. 1.)15 As these opinion letters 

make clear, and as the DLSE argues in its amicus curiae brief, the wage order‟s 

meal period requirement is satisfied if the employee (1) has at least 30 minutes 

uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for 

the entire period. (DLSE Opinion Letter No. 1988.01.05, supra, at p. 1; Dept. 

Industrial Relations, DLSE Opinion Letter No. 1996.07.12 (July 12, 1996) p. 1.) 

We agree with this DLSE interpretation of the wage order.

It was against this background that in 1999 the Legislature first regulated 

meal periods, previously the exclusive province of the IWC. New section 512 

made meal periods a statutory as well as a wage order obligation: an employer 

must “provid[e] the employee with a meal period of not less than 30 minutes” for 

workdays lasting more than five hours, and provide two meal periods for 

 

15 See also Bono Enterprises, Inc. v. Bradshaw, supra, 32 Cal.App.4th at page 

975 (emphasizing absence of duty and freedom from employer control as central 

to unpaid meal periods); Wage Order No. 5, subdivision 2(K) (defining “ „Hours 

worked‟ ” as including all time when subject to employer control).
31

workdays in excess of 10 hours, subject to waiver in certain circumstances. 

(Former § 512, enacted by Stats. 1999, ch. 134, § 6, p. 1823.)16

The duty to provide meal periods is not further defined by section 512, but 

the nature of the duty is evident from surrounding indicia of legislative intent. As 

discussed, when the Legislature entered the field of meal break regulation in 1999, 

it entered an area where the IWC and DLSE had, over more than half a century, 

developed a settled sense of employers‟ meal break obligations. In such 

circumstances, we begin with the assumption the Legislature did not intend to 

upset existing rules, absent a clear expression of contrary intent. (Industrial 

Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 734; see also Cal. Drive-in 

Restaurant Assn. v. Clark, supra, 22 Cal.2d at p. 292 [statutes should be construed 

insofar as possible to avoid implied repeal of wage orders].) Section 512‟s 

mandate that employers “provid[e]” 30-minute meal breaks can be read as 

shorthand for the requirement contemplated in subdivision 11 of most of the 

IWC‟s wage orders: Employers must afford employees uninterrupted half-hour 

periods in which they are relieved of any duty or employer control and are free to 

come and go as they please.

Examination of the relevant legislative history confirms this reading. The 

origins of section 512 trace to the late 1990‟s, when the IWC amended five wage 

orders to abolish daily overtime, limiting overtime compensation to hours worked 

in excess of 40 per week, rather than hours worked in excess of eight per day, as 

had previously been the case. (See Johnson v. Arvin-Edison Water Storage Dist.

 

16 As enacted in 1999, the text of section 512 consisted of what is now section 

512, subdivision (a). (Stats. 1999, ch. 134, § 6, p. 1823.) The original text was 

recodified without change in 2000 when a new subdivision was added. (Stats. 

2000, ch. 492, § 1, p. 3500.)
32

(2009) 174 Cal.App.4th 729, 735.) Troubled by this weakening of employee 

protections, the Legislature enacted the Eight-Hour-Day Restoration and 

Workplace Flexibility Act of 1999 (Stats. 1999, ch. 134, enacting Assem. Bill No. 

60 (1999-2000 Reg. Sess.)), which restored daily overtime, nullified IWCapproved alternative workweek schedules, and directed the IWC to re-adopt 

conforming wage orders. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d 

reading analysis of Assem. Bill No. 60 (1999-2000 Reg. Sess.) as amended July 1, 

1999, pp. 2-5; see also Stats. 1999, ch. 134, § 2, p. 1820; Assem. Floor 

Concurrence in Sen. Amends. to Assem. Bill No. 60 (1999-2000 Reg. Sess.) as 

amended July 1, 1999, p. 6.)

As part of its response to the IWC‟s rollback of employee protections, the 

Legislature wrote into statute various guarantees that previously had been left to 

the IWC, including meal break guarantees. (§ 512, subd. (a).) The declared intent 

in enacting section 512 was not to revise existing meal period rules but to codify 

them in part. (See, e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill 

No. 60 (1999-2000 Reg. Sess.) as amended Mar. 22, 1999, p. 3; Legis. Counsel‟s 

Dig., Assem. Bill No. 60 (1999-2000 Reg. Sess.) 5 Stats. 1999, Summary Dig., 

p. 62.) It follows that the duty the Legislature intended to impose was the duty as 

it had existed under the IWC‟s wage orders. Thus, under what is now section 512, 

subdivision (a), as under Wage Order No. 5, an employer‟s obligation when 

providing a meal period is to relieve its employee of all duty for an uninterrupted 

30-minute period.

Hohnbaum contends that an employer has one additional obligation: to 

ensure that employees do no work during meal periods. He places principal 

reliance on a series of DLSE opinion letters. In 2001, in the course of discussing 

rest breaks, the DLSE distinguished an employer‟s meal break duties and observed 

that for meal breaks “an employer has an affirmative obligation to ensure that 
33

workers are actually relieved of all duty, not performing any work, and free to 

leave the worksite . . . .” (Dept. of Industrial Relations, DLSE Opinion Letter No. 

2001.09.17, supra, p. 4, italics added.) In 2002, the DLSE reiterated the point: 

with regard to meal periods, “an employer has an affirmative obligation to ensure 

that workers are actually relieved of all duty, not performing any work, and . . . 

free to leave the employer‟s premises.” (Dept. of Industrial Relations, DLSE 

Opinion Letter No. 2002.01.28 (Jan. 28, 2002) p. 1, italics added; see also Dept. of 

Industrial Relations, DLSE Opinion Letter No. 2002.09.04 (Sept. 4, 2002) p. 2 

[“[A]s a general rule the required meal period must be an off-duty meal period, 

during which time the employee . . . is not suffered or permitted to work . . .”].)

We are not persuaded. The difficulty with the view that an employer must 

ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in 

the wage order or statute. While at one time the IWC‟s wage orders contained 

language clearly imposing on employers a duty to prevent their employees from 

working during meal periods,17 we have found no order in the last half-century 

continuing that obligation. Indeed, the obligation to ensure employees do no work 

may in some instances be inconsistent with the fundamental employer obligations 

associated with a meal break: to relieve the employee of all duty and relinquish 

any employer control over the employee and how he or she spends the time. (See 

 

17 See, e.g., IWC wage order No. 2, subdivision 1(20) (Apr. 14, 1916) (“no 

woman or minor shall be permitted to return to work in less than one-half hour”); 

IWC wage order No. 3a, subdivision 12 (June 4, 1928) (same); IWC wage order 

No. 18, subdivision 10 (Feb. 26, 1932) (same); id., subdivision 11, footnote * (“It 

is recommended that . . . without exception where [lunch room] space is provided, 

all women and minors shall be required during the meal period to leave and 

remain out of the room in which they are regularly employed.”); IWC wage order 

No. 9 Amended, subdivision 9(a) (Aug. 28, 1933) (“The employer is responsible 

for seeing that [the meal period] time is taken.”).
34

Morillion v. Royal Packing Co., supra, 22 Cal.4th at pp. 584-585 [explaining that 

voluntary work may occur while not subject to an employer‟s control, and its 

cessation may require the reassertion of employer control].)

For support, Hohnbaum focuses on the phrase “No employer shall employ 

any person [without the specified meal period]” (Wage Order No. 5, subd. 

(11)(A)), contending that “employ” includes permitting or suffering one to work, 

and so the employer is forbidden from permitting an employee to work during a 

meal break. Although Hohnbaum is entirely correct about the broad meaning the 

wage order gives the term “employ” (see Wage Order No. 5, subd. 2(E) 

[“ „Employ‟ means to engage, suffer, or permit to work.‟ ”]),18 his argument 

misconstrues the role that broad definition plays in the structure of subdivision 

11(A). The provision identifies both an employer obligation (relieving employees 

of all duty for 30 minutes) and a condition precedent or trigger for that obligation. 

“No employer shall employ” is part of the definition of the trigger, not of the 

obligation. If an employer engages, suffers, or permits anyone to work for a full 

five hours, its meal break obligation is triggered. “Employ” relates to what must 

transpire during the five-hour work period; it does not relate to what must 

transpire next.

 

18 Wage Order No. 5‟s definition of “employ” was first inserted in 1943. 

(IWC wage order No. 5 NS, subd. 2(c) (June 28, 1943).) At the time, the IWC 

explained that “in order to overcome the possibility of subterfuge being resorted to 

by unscrupulous employers under which subterfuge such employers claim that 

they did not hire the employee, it becomes necessary to find that „employment‟ 

means „suffering or permitting‟ a woman or minor to perform services . . . .” 

(IWC meeting minutes (Apr. 14, 1943) p. 4.) The adopted definition was 

consistent with how the IWC had used the term from its earliest wage orders 

forward. (See Martinez v. Combs, supra, 49 Cal.4th at pp. 57-58.)
35

What must transpire after the meal break obligation is triggered is covered 

by later parts of the subdivision relating to waiver, on duty meal periods (and by 

negative implication off duty meal periods), and premium pay. When someone is

suffered or permitted to work—i.e., employed—for five hours, an employer is put 

to a choice: it must (1) afford an off duty meal period; (2) consent to a mutually 

agreed-upon waiver if one hour or less will end the shift; or (3) obtain written 

agreement to an on duty meal period if circumstances permit. Failure to do one of 

these will render the employer liable for premium pay. (§ 226.7, subd. (b); Wage 

Order No. 5, subd. 11(A), (B).) As earlier discussed, because the defining 

characteristic of on duty meal periods is failing to relieve an employee of duty, not 

simply “suffering or permitting” work to continue, it follows that off duty meal 

periods are similarly defined by actually relieving an employee of all duty: doing 

so transforms what follows into an off duty meal period, whether or not work 

continues.19

 

19 If work does continue, the employer will not be liable for premium pay. At 

most, it will be liable for straight pay, and then only when it “knew or reasonably 

should have known that the worker was working through the authorized meal 

period.” (Dept. Industrial Relations, DLSE Opinion Letter No. 1991.06.03, supra, 

p. 1; see Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 585.) The DLSE 

correctly explains the distinction in its amicus curiae brief: “The employer that 

refuses to relinquish control over employees during an owed meal period violates 

the duty to provide the meal period and owes compensation [and premium pay] for 

hours worked. The employer that relinquishes control but nonetheless knows or 

has reason to know that the employee is performing work during the meal period, 

has not violated its meal period obligations [and owes no premium pay], but 

nonetheless owes regular compensation to its employees for time worked.” (See 

also Wage Order No. 5, subd. 2(K) [defining “ „[h]ours worked,‟ ” for which 

compensation is owed, to include “all the time the employee is suffered or 

permitted to work, whether or not required to do so”].)
36

Proof an employer had knowledge of employees working through meal 

periods will not alone subject the employer to liability for premium pay; 

employees cannot manipulate the flexibility granted them by employers to use 

their breaks as they see fit to generate such liability. On the other hand, an 

employer may not undermine a formal policy of providing meal breaks by 

pressuring employees to perform their duties in ways that omit breaks. (Cicairos 

v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963; see also Jaimez v. 

Daiohs USA, Inc., supra, 181 Cal.App.4th at pp. 1304-1305 [proof of common 

scheduling policy that made taking breaks extremely difficult would show 

violation]; Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 

[indicating informal anti-meal-break policy “enforced through „ridicule‟ or 

„reprimand‟ ” would be illegal].) The wage orders and governing statute do not 

countenance an employer‟s exerting coercion against the taking of, creating 

incentives to forego, or otherwise encouraging the skipping of legally protected 

breaks.

To summarize: An employer‟s duty with respect to meal breaks under both 

section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a 

meal period to its employees. The employer satisfies this obligation if it relieves 

its employees of all duty, relinquishes control over their activities and permits

them a reasonable opportunity to take an uninterrupted 30-minute break, and does 

not impede or discourage them from doing so. What will suffice may vary from 

industry to industry, and we cannot in the context of this class certification 

proceeding delineate the full range of approaches that in each instance might be 

sufficient to satisfy the law.

On the other hand, the employer is not obligated to police meal breaks and 

ensure no work thereafter is performed. Bona fide relief from duty and the 

relinquishing of control satisfies the employer‟s obligations, and work by a 
37

relieved employee during a meal break does not thereby place the employer in 

violation of its obligations and create liability for premium pay under Wage Order 

No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).

2. Meal period timing

We turn to the question of timing. To determine whether the IWC or the 

Legislature intended to regulate meal period timing, we consider the language and 

history of both Labor Code section 512 and Wage Order No. 5. We conclude that, 

absent waiver, section 512 requires a first meal period no later than the end of an 

employee‟s fifth hour of work, and a second meal period no later than the end of 

an employee‟s 10th hour of work. We conclude further that, contrary to 

Hohnbaum‟s argument, Wage Order No. 5 does not impose additional timing 

requirements.

We begin with the text of section 512, subdivision (a). On the subject of 

first meal periods, it provides: “An employer may not employ an employee for a 

work period of more than five hours per day without providing the employee with 

a meal period of not less than 30 minutes, except that if the total work period per 

day of the employee is no more than six hours, the meal period may be waived by 

mutual consent of both the employer and employee.” This provision could be 

interpreted as requiring employers either to provide a meal break after no more 

than five hours of work in a day, absent waiver, or simply to provide a meal break 

at any point in scheduled shifts that exceed five hours.

The first interpretation is the correct one: the statute requires a first meal 

period no later than the start of an employee‟s sixth hour of work. Section 512, 

subdivision (b) resolves the ambiguity. It provides: “Notwithstanding subdivision 

(a), the Industrial Welfare Commission may adopt a working condition order 

permitting a meal period to commence after six hours of work if the commission 
38

determines that the order is consistent with the health and welfare of the affected 

employees.” The provision employs the language of timing: the IWC may adopt 

a rule “permitting a meal period to commence after six hours,” i.e., as late as six 

hours into a shift. (Ibid., italics added.) By beginning with “Notwithstanding 

subdivision (a),” the provision further indicates that any such timing rule would 

otherwise contravene subdivision (a). Only if subdivision (a) was intended to 

ensure that a first meal period would commence sooner than six hours, after no 

more than five hours of work, would this be true. (See Assem. Republican 

Caucus, analysis of Sen. Bill No. 88 (1999-2000 Reg. Sess.) as amended Aug. 10, 

2000, p. 1 [prior to the addition of § 512, subd. (b), noting that “[e]xisting law 

requires that the meal period begin no later than 5 hours after work begins”].) 

Accordingly, first meal periods must start after no more than five hours.20

We turn to the matter of second meal periods. Section 512, subdivision (a) 

provides in its second sentence: “An employer may not employ an employee for a 

work period of more than 10 hours per day without providing the employee with a 

second meal period of not less than 30 minutes, except that if the total hours 

worked is no more than 12 hours, the second meal period may be waived by 

mutual consent of the employer and the employee only if the first meal period was 

not waived.” As with the first sentence of subdivision (a), this language is 

susceptible of two readings: it could be interpreted as requiring employers to 

provide a second meal break after no more than 10 hours of work in a day, absent 

 

20 The IWC has permitted first meal periods after six hours of work for all 

employees under Wage Order No. 12 and those under Wage Order No. 1 who 

collectively bargain for such a variance. (IWC wage order No. 12-2001 (Jan. 1, 

2001); IWC wage order No. 1-2001, as amended July 1, 2002; Cal. Code Regs., 

tit. 8, §§ 11120, subd. 11(A), 11010, subd. 11(A)). It has made no similar 

allowance in the wage order applicable here, Wage Order No. 5.
39

waiver, or as simply requiring employers to provide at least two separate breaks at 

any point in scheduled shifts that exceed 10 hours. Significantly, however, the 

language is parallel to subdivision (a)‟s first sentence. Hence, if the first sentence 

was intended to ensure a first meal period no more than five hours into a shift, as 

subdivision (b) reveals it was, it follows that the second, parallel, sentence should 

be read to require a second meal period after no more than 10 hours of work in a 

day, i.e., no later than what would be the start of the 11th hour of work, absent 

waiver.

Hohnbaum contends section 512 should be read as requiring as well a 

second meal period no later than five hours after the end of a first meal period if a 

shift is to continue. The text does not permit such a reading. It requires a second 

meal after no more than 10 hours of work; it does not add the caveat “or less, if the 

first meal period occurs earlier than the end of five hours of work.” Because the 

statutory text is conclusive, we need not consider extrinsic sources on this point. 

(Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 507-508.)

The further issue is whether Wage Order No. 5 imposes any additional 

requirement. We agree with Brinker that it does not.

The IWC has long been understood to have the power to adopt 

requirements beyond those codified in statute. (Industrial Welfare Com. v. 

Superior Court, supra, 27 Cal.3d at p. 733; Cal. Drive-in Restaurant Assn. v. 

Clark, supra, 22 Cal.2d at pp. 292-294; see also ante, at p. 17.) Section 516 

creates an exception; it bars the use of this power to diminish section 512‟s 

protections: “Except as provided in Section 512, the Industrial Welfare 

Commission may adopt or amend working condition orders with respect to break 

periods, meal periods, and days of rest for any workers in California consistent 

with the health and welfare of those workers.” (Italics added). While the 

Legislature in section 516 generally preserved the IWC‟s authority to regulate 
40

break periods, it intended to prohibit the IWC from amending its wage orders in 

ways that “conflict[] with [the] 30-minute meal period requirements” in section 

512. (Legis. Counsel‟s Dig., Sen. Bill No. 88 (1999-2000 Reg. Sess.) 6 Stats. 

2000, Summary Dig., p. 212; see Bearden v. U.S. Borax, Inc. (2006) 138 

Cal.App.4th 429, 438.) In the absence of a conflict, however, the IWC may still 

augment the statutory framework with additional protections on matters not 

covered by section 512; that is, the Legislature did not intend to occupy the field 

of meal period regulation. (See, e.g., Assem. Com. on Labor & Employment, 

3d reading analysis of Sen. Bill No. 88 (1999-2000 Reg. Sess.) as amended 

Aug. 10, 2000, p. 4 [authorizing the IWC to regulate so long as the orders it adopts 

are “consistent” with § 512]; § 226.7 [imposing premium wages for violations of 

the IWC‟s meal period provisions, rather than § 512].)

The text of Wage Order No. 5 is ambiguous. Subdivision 11(A) provides 

in relevant part: “No employer shall employ any person for a work period of more 

than five (5) hours without a meal period of not less than 30 minutes, except that 

when a work period of not more than six (6) hours will complete the day‟s work 

the meal period may be waived by mutual consent of the employer and employee.” 

This language may be read to mirror our interpretation of section 512: employees 

are due a first meal period after no more than five hours of work, a second meal 

period after no more than 10 hours, and so on. Alternatively, it may be read more 

restrictively, as allowing an employer to schedule no more than five hours of work 

between a first meal period and either another meal period or the end of the shift. 

Thus, for example, an employee given a meal period after three hours of work 

would become entitled after eight hours of work either to end the shift or to take a 
41

second meal period, even though 10 hours of work were not yet complete.21 In 

the face of this textual ambiguity, we consider the relevant adoption history. (See 

Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1235.)

Evidence in the historical record suggests the IWC‟s meal period language 

originally was intended to limit employees to five-hour work intervals without a 

meal. In 1943, the first version of the current language appeared: “No employer 

shall employ any woman or minor for a work period of more than five (5) hours 

without an allowance of not less than thirty (30) minutes for a meal.” (IWC wage 

order No. 5 NS, subd. 3(d) (June 28, 1943).) The provision‟s intended function 

was to ensure workers were not required to go too long without a meal break; the 

IWC found “that it is necessary to insure a meal period after not more than 5 hours 

of work in order to protect the health of women and minors.” (IWC meeting 

minutes (Feb. 5, 1943) p. 19; accord, IWC meeting minutes (Apr. 14, 1943) 

p. 6.)22

At the time, this provision was understood to apply to the work intervals 

that conclude shifts, as well as those that begin shifts. In response to a request 

from a regulated store that, for shifts running from 9:00 a.m. to 6:00 p.m., 

employees be permitted to lunch between 11:00 a.m. and noon, i.e., with six hours 

 

21 A third interpretation, that the provision guarantees only the rate at which 

meal periods are owed and not the timing of them—one meal period for each five 

full hours worked, to be provided as early or as late as the employer chooses—is 

advocated by neither party. As our examination of the IWC‟s records, post, makes 

clear, it is also not an interpretation the IWC ever contemplated.

22 This was consistent with historical practice, as the IWC had long regulated 

both the number and timing of meals. (See, e.g., IWC wage order No. 2, subd. 

1(20) (Apr. 14, 1916) [guaranteeing a “noon day meal”]; IWC wage order No. 4, 

subd. 1(21) (June 15, 1917) [adding a provision for an “evening meal” on shifts 

extending into the night]; IWC wage order No. 3a, subd. 12 (June 4, 1928) 

[providing for an evening meal if work continued beyond 7:30 p.m.].)
42

between the end of the meal period and the shift end, the IWC adopted an 

exception to the five-hour limit, allowing work periods of up to six hours at the 

end of shifts. (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943) [“However, 

if the employee‟s work for the day will be completed within six (6) hours, such 

meal period need not be given.”]; IWC meeting minutes (Jan. 29, 1943) p. 15; 

IWC meeting minutes (Feb. 5, 1943) p. 19.)

In 1947, the IWC briefly departed from its original formulation, rewriting 

the timing requirement to apply only to the beginning of each work shift. (IWC 

wage order No. 5 R, subd. 10 (June 1, 1947) [“No employee shall be required to 

work more than five (5) consecutive hours after reporting for work, without a meal 

period of not less than (30) minutes.”].) In 1952, however, it returned to its 

previous approach, adopting language that has been carried forward to today 

without significant change.23 (IWC wage order No. 5-52, subd. 11 (Aug. 1, 1952) 

[“No employer shall employ any woman or minor for a work period of more than 

five (5) hours without a meal period of not less than thirty (30) minutes; except 

that when a work period of not more than six (6) hours will complete the day‟s 

work, the meal period may be waived.”].) The IWC explained this revision was 

intended to expand the right to meal periods from a single break in the first five 

hours to one at least every five hours through the day: “ „The meal period 

provision was amended to permit a 6-hour work period without a meal when such 

a work shift would complete the day‟s work, [with] the additional provision that a 

meal period shall be every 5 hours rather than providing only one meal period 

 

23 In 1963, the IWC clarified that waiver of a meal period required mutual 

consent, and in 1976 it expanded coverage to men. (See IWC wage order No. 5-

63, subd. 11(a) (Aug. 30, 1963); IWC wage order No. 5-76, subd. 11(A) (Oct. 18, 

1976).)
43

within the first 5 hours.‟ ” (IWC meeting minutes (May 16, 1952) p. 33 [adopting 

summary of findings], italics added.)

The IWC‟s descriptions of its meal period requirement in the ensuing years 

similarly reflected an understanding that work periods before and after meals were 

to be limited to five hours absent waiver. For example, the commission, 

discussing IWC wage order No. 12-63 (Aug. 30, 1963) (identically worded to 

Wage Order No. 5 save for a longer permissible period between meals), explained 

that the meal provision “requires the employer to provide meal periods at intervals

of no more than five and one-half hours within the work period.” (Wage Board 

for IWC Wage Order 12—Motion Picture Industry, Rep. & Recommendations 

(Oct. 21, 1966) p. 6; see also Margaret T. Miller, IWC executive officer, letter to 

Klaus Wehrenberg (July 13, 1982) p. 2 [under the IWC‟s wage orders, “meal 

periods must be provided „at such intervals as will result in no employee working 

longer than five consecutive hours without an eating period‟ ”].)

In 1999, however, the Legislature passed Assembly Bill No. 60 (1999-2000 

Reg. Sess.), which among other things repudiated the IWC‟s actions in adopting a 

series of wage orders that had eliminated daily overtime. (Harris v. Superior 

Court (2011) 53 Cal.4th 170, 177; ante, at p. 32.) Assembly Bill No. 60 repealed 

five wage orders, including IWC wage order No. 5-98 (Jan. 1, 1998), and required 

the IWC to review its wage orders and readopt orders conforming to the 

Legislature‟s expressed intentions. (§ 517; Stats. 1999, ch. 134, § 21, p. 1829.) 

It also enacted section 512, which for the first time set out statutory meal period 

requirements.

The IWC complied with the directive to adopt new wage orders. Pending 

completion of plenary review, it issued an interim wage order applicable to all 

industries, including those previously and subsequently covered by Wage Order 

No. 5. Notably, the interim order mirrored section 512‟s language, spelling out 
44

that a second meal period was required after 10 hours of work, rather than leaving 

the timing of second meal periods to implication, as previous wage orders 

generally had. (IWC interim wage order—2000 (Mar. 1, 2000) subd. 9.)24 The 

IWC also explained its intention that, absent waiver, employees were entitled to “a 

thirty-minute meal period for every 5 hours of work” (IWC official notice, 

Summary of Interim Wage Order—2000, italics added), a lesser requirement than 

the IWC‟s prior view that “ „a meal period shall be every 5 hours‟ ” (IWC meeting 

minutes (May 16, 1952) p. 33). From the text of the interim order and the official 

explanation, it is apparent the IWC intended a requirement parallel to that of the 

Legislature‟s section 512, with a second meal period due after 10 hours, rather 

than after an interval of no more than five hours following a first meal period.

Thereafter, the IWC held public hearings and adopted revised wage orders 

for each industry, including the current version of Wage Order No. 5, wage order 

No. 5-2001. From our review of the text of the various wage orders, the IWC‟s 

official explanations of its intent behind these orders, and the transcripts of the 

IWC‟s numerous hearings, we conclude the IWC abandoned any requirement that 

work intervals be limited to five hours following the first meal break.

 

24 Subdivision 9 provided: “9. MEAL PERIODS. [¶] (A) No employer shall 

employ any person for a work period of more than five (5) hours without a meal 

period of not less than thirty (30) minutes, except that when a work period of not 

more than six (6) hours will complete the day‟s work the meal period may be 

waived by mutual consent of employer and employee. [¶] (B) An employer may 

not employ an employee for a work period of more than ten (10) hours per day 

without providing the employee with a second meal period of not less than thirty 

(30) minutes, except that if the total hours worked is no more than twelve (12) 

hours, the second meal period may be waived by mutual consent of the employer 

and the employee only if the first meal period was not waived.” (IWC interim 

wage order—2000 (Mar. 1, 2000) subd. 9.)
45

With only limited exceptions, the IWC intended its 2001 wage orders to 

embrace section 512‟s meal period requirements, not impose different ones. 

Having borrowed the provisions of Assembly Bill No. 60 (1999-2000 Reg. Sess.), 

including section 512, for its interim wage order, the IWC simply copied the 

interim wage order‟s meal provision into most of its industry-specific wage orders. 

(IWC public hearing transcript (June 30, 2000) pp. 7-10 [explaining intent to 

mirror Assem. Bill No. 60 on meals]; see, e.g., IWC wage order No. 2-2001 

(Jan. 1, 2001); IWC wage order No. 3-2001 (Jan. 1, 2001); IWC wage order 

No. 6-2001 (Jan. 1, 2001); Cal. Code Regs., tit. 8, §§ 11020, subd. 11(A), (B), 

11030, subd. 11(A), (B), 11060, subd. 11(A), (B).) The IWC explained that under 

these wage orders, first meals would continue to be assured for employees 

“working for a period of more than five (5) hours,” while second meal periods 

would now be provided “in accordance with Labor Code §512(a).” (IWC 

statement as to the basis (Jan. 1, 2001) p. 19; see also IWC summary of 

amendments to wage orders 1-13, 15 & 17 (Jan. 1, 2001) [except as specified in 

wage order Nos. 4, 5 & 12, employees are entitled to “a 30-minute meal period for 

every 5 hours of work”].) Thus, as to the majority of its 2001 wage orders, the 

IWC did not intend to impose a different meal period requirement than that spelled 

out in section 512; specifically, it did not intend to require employers to provide 

employees a second meal period no more than five hours after a first meal period. 

These orders and the statute are congruent; under each, a first meal period is 

guaranteed after five hours of work, while a second meal period is required only 

after 10 hours of work.

The IWC varied slightly the language of wage order Nos. 4-2001 and 5-

2001. These two orders retained the same subdivision 11(A) language requiring a 

meal period for every five hours, as in other wage orders, but they omitted the 

subdivision 11(B) language used elsewhere to define the conditions for receiving, 
46

and for waiving, a second meal period. As we shall explain, this omission was for 

reasons related to meal period waivers, not meal timing. The IWC did not intend 

in Wage Order No. 5 to depart from the timing requirements contained in other 

wage orders or Labor Code section 512.

The IWC had originally modified the meal waiver requirements in wage 

order Nos. 4 and 5 in 1993, in response to a health care industry petition to permit 

its employees to waive a second meal period on longer shifts in order to leave 

earlier. (See IWC petn. 93-1 (Jan. 25, 1993) pp. 31-32; IWC wage order No. 4-89, 

subd. 11(C) (as amended Aug. 21, 1993); IWC wage order No. 5-89, subd. 11(C) 

(as amended Aug. 21, 1993); IWC statement as to the basis of amendments to 

§§ 2, 3 & 11 of IWC wage order No. 5-89 (June 29, 1993).) The IWC later 

extended similar waiver rights to all employees covered by these wage orders and 

three others, but that extension was among many wage order changes repealed by 

the Legislature in 1999. (IWC statement as to the basis, overtime and related 

issues (Apr. 11, 1997) pp. 7-8; Stats. 1999, ch. 134, § 21, p. 1829.)

Thereafter, health care representatives persuaded the IWC to at least 

preserve expanded waiver rights for their industry, along the lines of those 

originally afforded in 1993. (See IWC statement as to the basis (Jan. 1, 2001) 

pp. 19-20.) Accordingly, wage order No. 4-2001 and No. 5-2001 each contains a 

provision absent from other wage orders, permitting health care employees to 

waive one of two meal periods on longer shifts. (IWC wage order No. 4-2001 

(Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11040, subd. 11(D)); Wage Order No. 5, 

subd. 11(D).)25 Notably, the waiver provisions permit meal waivers even on shifts 

 

25 Hohnbaum argues that because the right to waive a second meal period was 

extended to employees working in excess of eight hours, the IWC must have 

contemplated employees accruing a right to a second meal before 10 hours of 

(footnote continued on next page)
47

in excess of 12 hours and thus conflict with language in the standard subdivision 

regulating second meal periods in other wage orders that limits second meal 

waivers to shifts of 12 hours or less (see, e.g., IWC wage order No. 2-2001 (Jan. 1, 

2001) (Cal. Code Regs., tit. 8, § 11020, subd. 11(B))). For this reason, the IWC 

elected to omit that standard subdivision from these two wage orders. (See IWC 

statement as to the basis (Jan. 1, 2001) pp. 19-20.) Because the omission related 

to waiver and was not the product of any intent to include different meal timing 

requirements in Wage Order No. 5, we interpret that order as imposing the same 

timing requirements as those in most of the IWC‟s other wage orders and in Labor 

Code section 512.26

Hohnbaum contends he does not seek to require earlier second meal periods 

than provided for by section 512 (and, as we have determined, by Wage Order 

No. 5); rather, he seeks only to interpret Wage Order No. 5, subdivision 11(A) as 

 

(footnote continued from previous page)

work. The historical record does not support this inference. The language was 

originally prepared by industry officials, not the IWC. (IWC statement as to the 

basis (Jan. 1, 2001) p. 20.) In public discussion of the second meal waiver 

provision, neither in 1993 nor in 2000 did the issue arise of a second meal period 

being owed five hours after a first meal period. Instead, discussion focused on 

whether health care employees working 12-hour shifts, as opposed to eight-hour 

shifts, should be allowed to waive a second meal period. (See, e.g., IWC public 

hearing transcript (Apr. 7, 1993); IWC public hearing transcript (Jan. 28, 2000); 

IWC public hearing transcript (Apr. 14, 2000).)

26 IWC wage order No. 12-2001 stands in contrast. There, the IWC, in 

response to film industry concerns that section 512 conflicted with industry 

collective bargaining agreements setting meal breaks at intervals of six hours, 

preserved language setting first and subsequent meals at six-hour intervals, rather 

than after five hours of work and 10 hours of work. (See IWC wage order No. 12-

2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11120, subd. 11(A)); IWC public

hearing transcript (May 5, 2000) pp. 44-50.) Had the IWC intended in Wage 

Order No. 5 to preserve timing requirements additional to those provided by 

section 512, it could similarly have varied that wage order‟s language. It did not.
48

requiring that first meal periods be timed to prevent work periods, before or after, 

exceeding five hours. While we agree that the period before a first meal is limited 

to five hours (see § 512, subd. (a)), we cannot agree that the current version of 

Wage Order No. 5 limits to five hours the amount of work after a meal.

First, such a reading of subdivision 11(A) in the IWC‟s current wage orders 

would render the subdivision 11(B) guarantee of a second meal period after 10 

hours of work, included in most of those same orders, superfluous. (See, e.g., 

IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11020, subd. 

11(A), (B)).) We avoid such constructions whenever possible. (Department of 

Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 

Cal.4th 1, 14.)27

Second, Hohnbaum‟s argument rests on the contention that as used by the 

IWC, “ „work period‟ is a term of art meaning „a continuing period of hours 

worked,‟ ” and thus the five-hour “work period” limit in subdivision 11(A) must 

preclude more than five hours of continuous work after a meal period. “Work 

period” is not defined in any wage order. If the IWC‟s wage orders once 

informally adhered to Hohnbaum‟s usage, its 2001 orders no longer do. 

Subdivision 11(B) in most of the current orders refers to a “work period of more 

than ten (10) hours per day” before a second meal period. (E.g., IWC wage order 

No. 1-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11010, subd. 11(B)).) Any 

 

27 While Wage Order No. 5 does not include a second meal period guarantee 

in its subdivision 11(B), that omission is not, as just discussed, the result of any 

different intent with respect to second meal periods under the wage order. Most 

other wage orders include both a subdivision 11(A) mirroring Wage Order No. 5‟s 

subdivision 11(A) and a subdivision 11(B) guaranteeing a second meal period 

after 10 hours, and these provisions must be read to avoid surplusage.
49

such work period must have been broken by a first meal period and thus is not “ „a 

continuing period of hours worked.‟ ”

Third, there is no evidence the IWC intended to supplement the 

requirements of section 512 in the fashion Hohnbaum suggests. The implication is 

to the contrary. Having received a legislative rebuke, the IWC sought to make its 

orders track Assembly Bill No. 60 (1999-2000 Reg. Sess.) as closely as possible 

and expressed hesitance about departing from statutory requirements. (See, e.g., 

IWC public hearing transcript (May 5, 2000) pp. 52-56.) What departures it made 

appear to have been conscious choices, expressly identified in the IWC‟s 

statement as to the basis, and frequently justified by explicit reliance on its 

authority to augment the Labor Code. (See IWC statement as to the basis (Jan. 1, 

2001) pp. 19-20.) In contrast, the prospect of preserving any meal timing 

requirement previously implicit in Wage Order No. 5, beyond the requirements of 

section 512, was never discussed in the agency‟s 2000 hearings nor in its 

publications describing and explaining its 2001 wage orders. In the absence of 

any such discussion, we conclude the IWC did not intend to preserve Hohnbaum‟s 

posited requirement.28

 

28 In the ordinary case, proof that statutory or regulatory language was 

adopted with a particular intent, and that the adopting body did not thereafter 

express a contrary intent, may suffice to show that the language should be 

interpreted today in line with that original intent. Hohnbaum develops such an 

argument, trying to establish the original intent behind Wage Order No. 5, 

subdivision 11(A)‟s language and afford a basis to presume the same intent must 

hold today. But the inference Hohnbaum relies on—that this language should be 

read today to mean what it meant when adopted—collapses in the presence of 

evidence that the IWC in 2000 selected the current language to replicate the rules 

enacted by the Legislature in 1999, while preserving an expanded right to waive 

second meal periods for certain workers, and in the absence of evidence that it 

selected the language to also preserve a limitation on the duration of work after 

first meal periods.
50

Accordingly, we conclude that Wage Order No. 5 imposes no meal timing 

requirements beyond those in section 512. Under the wage order, as under the 

statute, an employer‟s obligation is to provide a first meal period after no more 

than five hours of work and a second meal period after no more than 10 hours of 

work.

B. Certification of a Meal Period Subclass

We return to the question of certification. The proposed meal period 

subclass includes all “Class Members who worked one or more work periods in 

excess of five (5) consecutive hours, without receiving a thirty (30) minute meal 

period during which the Class Member was relieved of all duties, from and after 

October 1, 2000.” The trial court accepted the subclass without modification and 

concluded: “Although a determination that defendant need not force employees to 

take breaks may require some individualized discovery, the common alleged 

issues of meal and rest violations predominate.” Thus, it reasoned that even if 

Brinker were correct about the nature of its duties, to treat the case as a class 

action would still be the better course.

One aspect of the class definition is notable: It sweeps in not only every 

Brinker employee who might have a claim under Hohnbaum‟s failure to provide 

meal periods theory, but also every employee who might have had a claim under 

the theory that a meal period must be provided every five hours. Consequently, 

because we have concluded neither Wage Order No. 5 nor section 512 imposes 

such a timing requirement, the class definition as presently drawn includes 

individuals with no possible claim.

That aspect of the class definition is notable for a second reason. In an 

unusual action requested by the parties, the trial court before deciding certification 

issued an explicit ruling on Hohnbaum‟s meal timing theory, agreeing with 
51

Hohnbaum that section 512 required a meal period every five hours. That the 

meal subclass definition thereafter incorporated Hohnbaum‟s timing theory thus 

raises the specter that the certification may have been influenced, in part, by the 

trial court‟s legal assumption about the theory‟s merits. Any such assumption 

would have been incorrect, given our ruling on the actual requirements of Wage 

Order No. 5 and section 512. (See ante, at pp. 37-50.) A grant or denial of class 

certification that rests in part on an erroneous legal assumption is error; without 

regard to whether such a certification might on other grounds be proper, it cannot 

stand. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436 [“[A]n order based 

upon improper criteria or incorrect assumptions calls for reversal “ „even though 

there may be substantial evidence to support the court's order.” ‟ ”].)

Under the unique circumstances of this case, however, we need not decide 

whether or not the trial court erred. Our subsequent ruling on Hohnbaum‟s meal 

timing theory, solicited by the parties, has changed the legal landscape; whether 

the trial court may have soundly exercised its discretion before that ruling is no 

longer relevant. At a minimum, our ruling has rendered the class definition 

adopted by the trial court overinclusive: The definition on its face embraces 

individuals who now have no claim against Brinker. In light of our substantive 

rulings, we consider it the prudent course to remand the question of meal subclass 

certification to the trial court for reconsideration in light of the clarification of the 

law we have provided.

VI. Off-the-clock Claims Class Certification

The third disputed subclass covers “Class Members who worked „off-theclock‟ or without pay from and after August 16, 2000.” As with the rest period

subclass, we consider only whether substantial evidence supports the trial court‟s 

conclusion that common questions predominate. None does.
52

Hohnbaum‟s off-the-clock claims are an offshoot of his meal period claims. 

He contends Brinker required employees to perform work while clocked out 

during their meal periods; they were neither relieved of all duty nor afforded an 

uninterrupted 30 minutes, and were not compensated. Hohnbaum further contends 

Brinker altered meal break records to conceal time worked during these periods.

Unlike for the rest period claim and subclass, for this claim neither a 

common policy nor a common method of proof is apparent. The rest period claim 

involved a uniform Brinker policy allegedly in conflict with the legal requirements 

of the Labor Code and the governing wage order. The only formal Brinker offthe-clock policy submitted disavows such work, consistent with state law.29 Nor 

has Hohnbaum presented substantial evidence of a systematic company policy to 

pressure or require employees to work off the clock, a distinction that 

differentiates this case from those he relies upon in which off-the-clock classes 

have been certified. (See, e.g., Salvas v. Wal-Mart Stores, Inc. (Mass. 2008) 893 

N.E.2d 1187, 1210-1211; Hale v. Wal-Mart Stores, Inc. (Mo.Ct.App. 2007) 231 

S.W.3d 215, 220, 225-228; Iliadis v. Wal-Mart Stores, Inc. (N.J. 2007) 922 A.2d 

710, 715-716, 723-724.)

Moreover, that employees are clocked out creates a presumption they are 

doing no work, a presumption Hohnbaum and the putative class members have the 

burden to rebut. As all parties agree, liability is contingent on proof Brinker knew 

or should have known off-the-clock work was occurring. (Morillion v. Royal 

 

29 Brinker‟s “Hourly Employee Handbook” states in part: “It is your 

responsibility to clock in and clock out for every shift you work. . . . [Y]ou may 

not begin working until you have clocked in. Working „off the clock‟ for any 

reason is considered a violation of Company policy. If you forget to clock in or 

out, or if you believe your time records are not recorded accurately, you must 

notify a Manager immediately, so the time can be accurately recorded for payroll 

purposes.”
53

Packing Co., supra, 22 Cal.4th at p. 585; see, e.g., White v. Starbucks Corp.

(N.D.Cal. 2007) 497 F.Supp.2d 1080, 1083-1085 [granting the defense summary 

judgment on an off-the-clock claim in the absence of proof the employer knew or 

should have known of the employee‟s work].) Nothing before the trial court 

demonstrated how this could be shown through common proof, in the absence of 

evidence of a uniform policy or practice. Instead, the trial court was presented 

with anecdotal evidence of a handful of individual instances in which employees 

worked off the clock, with or without knowledge or awareness by Brinker 

supervisors. On a record such as this, where no substantial evidence points to a 

uniform, companywide policy, proof of off-the-clock liability would have had to 

continue in an employee-by-employee fashion, demonstrating who worked off the 

clock, how long they worked, and whether Brinker knew or should have known of 

their work. Accordingly, the Court of Appeal properly vacated certification of this 

subclass.
54

DISPOSITION

For the foregoing reasons, we affirm the Court of Appeal‟s judgment as to 

the off-the-clock subclass. We reverse its judgment as to the rest period subclass. 

Finally, as to the meal period subclass, we reverse the Court of Appeal‟s judgment 

insofar as it directed the trial court to enter denial of certification with prejudice. 

We remand to the Court of Appeal with directions to, in turn, remand to the trial 

court for it to reconsider meal period subclass certification in light of the 

clarification of the law we have provided.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.
1

CONCURRING OPINION BY WERDEGAR, J.

I join fully in today‟s majority opinion, which I authored. For guidance on 

the issue we remand, meal period subclass certification, I write separately to 

emphasize what our opinion does not say. In returning the case for 

reconsideration, the opinion of the court does not endorse Brinker‟s argument, 

accepted by the Court of Appeal, that the question why a meal period was missed 

renders meal period claims categorically uncertifiable. Nor could it, for such a 

per se bar would be inconsistent with the law governing reporting obligations and 

our historic endorsement of a variety of methods that render collective actions 

judicially manageable.

Employers covered by Industrial Welfare Commission (IWC) wage order 

No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) have an obligation both to relieve 

their employees for at least one meal period for shifts over five hours (id., subd. 

11(A)) and to record having done so (id., subd. 7(A)(3) [“Meal periods . . . shall 

also be recorded.”]). If an employer‟s records show no meal period for a given 

shift over five hours, a rebuttable presumption arises that the employee was not 

relieved of duty and no meal period was provided. This is consistent with the 

policy underlying the meal period recording requirement, which was inserted in 

the IWC‟s various wage orders to permit enforcement. (See, e.g., IWC board for 

wage order No. 7-63 meeting minutes (Dec. 14-15, 1966) pp. 4-5 [rejecting 
2

proposal to eliminate the meal period recording requirement because “without the 

recording of all in-and-out time, including meal periods, the enforcement staff 

would be unable to adequately investigate and enforce” a wage order‟s meal 

period provisions].) An employer‟s assertion that it did relieve the employee of 

duty, but the employee waived the opportunity to have a work-free break, is not an 

element that a plaintiff must disprove as part of the plaintiff‟s case-in-chief. 

Rather, as the Court of Appeal properly recognized, the assertion is an affirmative 

defense, and thus the burden is on the employer, as the party asserting waiver, to 

plead and prove it. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995) 11 

Cal.4th 1, 31, 33; Williams v. Marshall (1951) 37 Cal.2d 445, 456.)1

 

1 As the Division of Labor Standards Enforcement (DLSE) has explained, 

even under the less restrictive wage order applicable to agricultural employees, if 

“a meal period is not taken by the employee, the burden is on the employer to 

show that the agricultural employee had been advised of his or her legal right to 

take a meal period and has knowingly and voluntarily decided not to take the meal 

period. Again, we emphasize, the burden is on the employer.” (Dept. Industrial 

Relations, DLSE Opinion Letter No. 2003.08.13 (Aug. 13, 2003) p. 2 [interpreting 

IWC wage order No. 14 (Cal. Code Regs., tit. 8, § 11140)].) To place the burden 

elsewhere would offer an employer an incentive to avoid its recording duty and a 

potential windfall from the failure to record meal periods. Both the United States 

Supreme Court and the courts of this state have rejected such an approach. (See 

Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 686-688 [where an 

employer is subject to a recordkeeping requirement, the burden shifts to that 

employer to rebut employee proof of monies owed once a prima facie case has 

been made]; Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 

1524, 1536, fn. 11 [refusing to allow an employer to use any shortcomings in its 

records to resist employee wage claims]; Cicairos v. Summit Logistics, Inc. (2005) 

133 Cal.App.4th 949, 961 [“ „[W]here the employer has failed to keep records 

required by statute, the consequences for such failure should fall on the employer, 

not the employee.‟ ”].)
3

While individual issues arising from an affirmative defense can in some 

cases support denial of certification,2 they pose no per se bar (see, e.g., Sav-On 

Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334-338; Weinstat v. 

Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1235). Instead, whether in 

a given case affirmative defenses should lead a court to approve or reject 

certification will hinge on the manageability of any individual issues. (See SavOn, at p. 334.)

For purposes of class action manageability, a defense that hinges liability 

vel non on consideration of numerous intricately detailed factual questions, as is 

sometimes the case in misclassification suits,3 is different from a defense that 

raises only one or a few questions and that operates not to extinguish the 

defendant‟s liability but only to diminish the amount of a given plaintiff‟s 

recovery. We have long settled that individual damages questions will rarely if 

ever stand as a bar to certification. (Sav-On Drug Stores, Inc. v. Superior Court, 

supra, 34 Cal.4th at p. 334; Employment Development Dept. v. Superior Court

(1981) 30 Cal.3d 256, 266.) “ „In almost every class action, factual determinations 

[of damages] . . . to individual class members must be made. [Citations.] Still we 

know of no case where this has prevented a court from aiding the class to obtain 

its just restitution. Indeed, to decertify a class on the issue of damages or 

restitution may well be effectively to sound the death-knell of the class action 

 

2 See, e.g., Soderstedt v. CBIZ Southern California, LLC (2011) 197 

Cal.App.4th 133, 151-154; Walsh v. IKON Office Solutions, Inc. (2007) 148 

Cal.App.4th 1440, 1450; Block v. Major League Baseball (1998) 65 Cal.App.4th 

538, 544.

3 See, e.g., Soderstedt v. CBIZ Southern California, LLC, supra, 197 

Cal.App.4th at pages 146-149; Walsh v. IKON Office Solutions, Inc., supra, 148 

Cal.App.4th at pages 1454-1456; but see Sav-On Drug Stores, Inc. v. Superior 

Court, supra, 34 Cal.4th at pages 334-340.
4

device.‟ ” (B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 

1341, 1354.)

Instead, we have encouraged the use of a variety of methods to enable 

individual claims that might otherwise go unpursued to be vindicated, and to avoid 

windfalls to defendants that harm many in small amounts rather than a few in large 

amounts. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at 

pp. 339-340; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 714-715.) 

Representative testimony, surveys, and statistical analysis all are available as tools 

to render manageable determinations of the extent of liability. (See, e.g., Bell v. 

Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 749-755 [upholding as 

consistent with due process the use of surveys and statistical analysis to measure a 

defendant‟s aggregate liability under the IWC‟s wage orders]; Dilts v. Penske 

Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [certifying a meal break 

subclass because liability could be established through employer records and 

representative testimony, and class damages could be established through 

statistical sampling and selective direct evidence]; see generally Sav-On, at p. 333

& fn. 6).) “[S]tatistical inference offers a means of vindicating the policy 

underlying the Industrial Welfare Commission‟s wage orders without clogging the 

courts or deterring small claimants with the cost of litigation.” (Bell, at p. 751.)

Given these settled principles, Brinker has not shown the defense it raises,

waiver, would render a certified class categorically unmanageable. Instead, it 

remains for the trial court to decide on remand, in the fullness of its discretion,
5

whether in this case methods exist sufficient to render class treatment manageable. 

As to that question, neither the full court nor I express any opinion.

WERDEGAR, J.

I CONCUR:

LIU, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Brinker Restaurant Corporation v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 165 Cal.App.4th 25

Rehearing Granted

__________________________________________________________________________________

Opinion No. S166350

Date Filed: April 12, 2012

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Patricia Yim Cowett

__________________________________________________________________________________

Counsel:

Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Johanna R. Shargel; Morrison & Foerster, Karen J. 

Kubin; Hunton & Williams, Laura M. Franze, M. Brett Burns and Susan J. Sandidge for Petitioners.

Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez and Michael D. Schlemmer for TechNet as Amicus 

Curiae on behalf of Petitioners.

Manatt, Phelps & Phillips, Yi-Chin Ho, Michael M. Berger, Benjamin G. Shatz and Andrew L. Satenberg 

for Chinese Daily News, Inc., as Amicus Curiae on behalf of Petitioners.

William B. Sailer; Paul, Hastings, Janofsky & Walker, Paul Grossman, Paul W. Crane, Jr., Katherine C. 

Huibonhoa and Rishi Sharma for California Employment Law Council as Amicus Curiae on behalf of 

Petitioners.

Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Julian W. Poon, Kirsten R. Galler, David S. Han, 

Blaine H. Evanson; National Chamber Litigation Center, Inc., Robin S. Conrad and Shane Brennan Kawka 

for Chamber of Commerce of the United States of America and California Chamber of Commerce as 

Amici Curiae on behalf of Petitioners.

Law Office of Robin L. Unander and Robin L. Unander for California Automotive Business Coalition as 

Amicus Curiae on behalf of Petitioners.

Lawrence Foust; Ballard Rosenberg Golper & Savitt and Christine T. Hoeffner for Childrens Hospital Los 

Angeles as Amicus Curiae on behalf of Petitioners.

Littler Mendelson, Julie A. Dunne, Lena K. Sims, Matthew S. Dente, Richard R. Rahm and Allan G. King 

for the National Retail Federation, National Council of Chain Restaurants, Contain-A-Way, Inc., USA 

Waste of California, Inc., California Building Industry Association, California Professional Association of 

Specialty Contractors, Western Growers Association, American Staffing Association, California Hotel & 

Lodging Association and National Association of Manufacturers as Amici Curiae on behalf of Petitioners.
Page 2 – S166350 – counsel continued

Counsel:

Mayer Brown and Donald M. Falk for the American Trucking Associations, Inc., and the California 

Trucking Association as Amicus Curiae on behalf of Petitioners.

Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Julie A. Dunne and Guylyn R. Cummins for 

Employers Group, California Retailers Association, California Hospital Association, California Restaurant 

Association, National Federation of Independent Business Small Business Legal Center, National Council 

of Chain Restaurants and National Retail Federation as Amici Curiae on behalf of Petitioners.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Petitioners.

Robert R. Roginson for the Division of Labor Standards Enforcement and Labor Commissioner Angela 

Bradstreet as Amici Curiae on behalf of Petitioners.

Jackson Lewis, Robert M. Pattison, Joel P. Kelly, JoAnna L. Brooks and Timothy C. Travelstead for San 

Francisco Bay Area Chapter, San Diego Chapter, Sacramento Chapter, Southern California Chapter and 

Employment and Labor Law Committee of the Association of Corporate Counsel as Amici Curiae on 

behalf of Petitioners.

Cox, Castle & Nicholson, John S. Miller, Jr., and Dwayne P. McKenzie for the Associated General 

Contractors of California, Inc., as Amici Curiae on behalf of Petitioners.

Higgs, Fletcher & Mack, Lee Burdick and John Morris for the San Diego Regional Chamber of Commerce 

as Amicus Curiae on behalf of Petitioners.

Greenberg Traurig, Gregory F. Hurley and Stacey Hertler for National Association of Theatre Owners of 

California/Nevada, Inc., as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Lorens & Associates, L. Tracee Lorens, Robert D. Wilson III, Wayne A. Hughes; Cohelan & Khoury, 

Cohelan Khoury & Singer, Timothy D. Cohelan, Michael D. Singer, Christopher A. Olsen; The Turley Law 

Firm, William Turley, David Mara; Furth, Lehmann & Grant, Furth Lehmann, The Furth Firm, Frederick 

P. Furth, Jessica L. Grant; Schubert & Reed, Schubert Jonckheer Kolbe & Kralowec, The Kralowec Law 

Group, Robert C. Schubert, Kimberly A. Kralowec; Altshuler Berzon and Michael Rubin for Real Parties 

in Interest.

Law Offices of Ian Herzog and Ian Herzog for Morry Brookler and the Putative Brookler Class as Amici 

Curiae on behalf of Real Parties in Interest.

Law Offices of Carroll & Scully, Inc., Donald C. Carroll and Charles P. Scully II for California Labor 

Federation, AFL-CIO as Amicus Curiae on behalf of Real Parties in Interest.

Bryan Schwartz Law, Bryan Schwartz; Arbogast & Berns and David M. Arbogast for California 

Employment Lawyers Association and Consumer Attorneys of California as Amici Curiae on behalf of 

Real Parties in Interest.
Page 3 – S166350 – counsel continued

Counsel:

Bard Seligman for the Impact Fund, Asian Law Caucus, Asian Pacific American Legal Center, Equal 

Rights Advocates, Lawyers‟ Committee for Civil Rights, Legal Aid Society-Employment Law Center, 

Mexican American Legal Defense & Educational Fund, Public Advocates and Women‟s Employment 

Rights Clinic of Golden Gate University School of Law as Amici Curiae on behalf of Real Parties in 

Interest.

Pope, Berger & Williams and Timothy G. Williams for Gelasio Salazar and Saad Shammas as Amici 

Curiae on behalf of Real Parties in Interest.

Clare Pastore and Kevin Kish for Bet Tzedek Legal Services, Asian Pacific American Legal Center of 

Southern California, California Rural Legal Assistance Foundation, Centro Legal de La Raza, La Raza 

Centro Legal, Legal Aid Society-Employment Law Center, Maintenance Cooperation Trust Fund, National 

Employment Law Project, Stanford Community Law Clinic and Wage Justice Center as Amici Curiae on 

behalf of Real Parties in Interest.

Locker Folberg, Miles E. Locker; Broad & Gusman and Barry Broad as Amici Curiae on behalf of Real 

Parties in Interest.

Weinberg, Roger & Rosenfeld, David A Rosenfeld, William A. Sokol, Theodore Franklin and Patricia M. 

Gates for Alameda County Central Labor Council, Bricklayers & Allied Craftworkers Local Union No. 3, 

California Conference of Machinists, Communications Workers of America, Contra Costa County Central 

Labor Council, Northern California Carpenters Regional Council, SEIU United Healthcare Workers-West, 

South Bay Central Labor Council and United Food & Commercial Workers International Union Local 5 as 

Amici Curiae on behalf of Real Parties in Interest.

Michael L. Smith, Lora Jo Foo and Danielle A. Lucido for Worksafe Law Center, La Raza Centro Legal, 

Legal Aid Society-Employment Law Center, Southern California Coalition of Occupational Safety & 

Health and Watsonville Law Center as Amici Curiae on behalf of Real Parties in Interest.

Altshuler Berzon, Michael Rubin, James F. Finberg, Eve Cervantez and Danielle E. Leonard for Rogelio 

Hernandez as Amicus Curiae on behalf of Real Parties in Interest.

Cynthia L. Rice, Jennifer Ambacher; Brad Seligman, Julia Campins; Julie Su; Peter Zchiesche; Irma 

Herrera; Donna Ryu; Margaret Prado-Alvarez, Matthew Goldberg; Anamaria Loya; D. Micahel Dale; and 

Marci Seville for California Rural Legal Assistance Foundation, the Impact Fund, Asian Pacific American 

Legal Center, Employee Rights Center, Equal Rights Advocates, Hastings Civil Justice Clinic, Katharine & 

George Alexander Community Law Center, Legal Aid Society-Employment Law Center, La Raza Centro 

Legal, Northwest Workers‟ Justice Project and Women‟s Employment Rights Clinic as Amici Curiae on 

behalf of Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Rex S. Heinke

Akin Gump Strauss Hauer & Feld

2029 Century Park East, Suite 2400

Los Angeles, CA 90067-3012

(310) 229-1000

Kimberly A. Kralowec

The Kralowec Law Group

188 The Embarcadero Suite 800

San Francisco, CA 94105

(415) 546-6800

Michael Rubin

Altshuler Berzon

177 Post Street, Suite 300

San Francisco, CA 94108

(415) 421-7151