In a mild win for employers, a California Court of Appeal recently held that employer handbooks which do not fully set forth the law–or which even conflict with the law– will not necessarily aid plaintiffs seeking class certification. Previously, the California Supreme Court in Brinker Restaurant Corporation v. Superior Court held that class action certification may be appropriate when an employer fails to enact required policies, or when the employer has policies that are non-compliant with existing laws or regulations.  In Brinker’s aftermath plaintiff attorneys began scouring employer handbooks looking for sections that were contrary to existing law or which failed to fully set forth existing law.  Because employment law in California is so fluid, employers were potentially looking at the dreaded prospect of “class certification” anytime their existing policies failed to comport with the law.

Fortunately, the court in Cacho v. Eurostar, Inc. (2019) 43 Cal.App.5th 885 recently held that omissions and even conflicting language may not doom an employer so long as the employer’s actual policies comported with the law.  In Cacho, the employer’s meal break policy did not mention that employees were entitled to meal breaks prior to the start of the fifth hour of their work during a regular shift.  Further, the employer’s rest break policy stated that employees were entitled to a rest break after four hours of work, rather than after a shift of at least three and half hours as the law requires.  However, the employer submitted significant evidence during the class certification motion that in actual practice employees received their meal breaks within the first five hours of their shifts, and that employees typically took their rest breaks after about two hours when they worked a shift of four or more hours (and, significantly, plaintiff failed to provide any evidence that the employer had a policy of denying employees rest breaks for shifts lasting between three and a half and four hours).  Thus, the employer’s good practices carried the day even where the written policy was not perfectly articulated.

It is still important to review your written policies and procedures (including your employment manual) on at least an annual basis to ensure compliance with all California laws and regulations because those policies will typically ensure good practices.  However, as the Cacho court reminds us, it is ultimately the practices that will carry the day, not the policies.

Douglas A. Plazak, Esq. is a partner with Reid & Hellyer, APC, focusing primarily on business litigation and employment law. Taking a leadership role with issues in the field of employment law, he testified before members of the California Legislature at the Legislative Summit on Jobs and Regulations in California as a knowledgeable professional in this field. He also practices bankruptcy law, representing both creditors and borrowers.

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