Statistical evidence in wage and hour cases after Brinker

Will statistical and survey evidence become less important after Brinker?

(from Akin Gump newsletter)

The California Court of Appeal for the Fourth Appellate District on July 22, 2008, in Brinker Restaurant Corp. v. Superior Court of San Diego County, issued a unanimous, published opinion that defines the elements of meal period, rest period and off-the-clock claims under California law. The court concluded that an employer must only provide meal and rest breaks to employees, not ensure that employees take them, as lawyers for plaintiffs have argued in many cases. The court held that why an employee did not take a particular break was an individual question that could not be resolved on a class basis. The court thus reversed class certification.

In terms of statistical evidence...the Court of Appeal rejected an argument that plaintiffs raised with respect to all of their claims: that “expert statistical and survey evidence” rendered their claims amenable to class treatment. The Court of Appeal explained that such evidence, while sometimes useful in the class certification context, in this case could not show why meal and rest breaks were not taken, whythey were interrupted or why employees worked off the clock. Only individual inquiries could resolve those questions, making class certification of plaintiffs’ claims inappropriate.