Carrington v. Starbucks Corp. ( 2018 )

Filed 11/27/18; Certified for Publication 12/19/18 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KILEIGH CARRINGTON, D072392
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00018637-
CU-OE-CTL )
STARBUCKS CORPORATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Katherine
A. Bacal, Judge. Affirmed.
Akin, Gump, Strauss, Hauer & Feld, Jonathan P. Slowik, Gregory W. Knopp, and
Rex S. Heinke for Defendant and Appellant.
Sullivan Law Group, Eric K. Yaeckel, William B. Sullivan, and Andrea J. Torres-
Figueroa for Plaintiff and Respondent.
Kileigh Carrington filed a complaint against her former employer, Starbucks
Corporation, asserting a representative cause of action under the Private Attorney General
Act (PAGA) (Labor Code, § 2698 et seq.),1 claiming Starbucks failed to properly provide
meal breaks or pay meal period premiums for certain employees in violation of
sections 226.7 and 512. In a bifurcated bench trial on plaintiff's action, the trial court
determined Starbucks was liable for these violations and imposed penalties of $150,000,
with 75 percent thereof payable to the Labor and Workforce Development Agency
(LWDA) and 25 percent payable to Carrington and the employees she represented in the
action. The trial court entered judgment in Carrington's favor. Starbucks appeals,
contending Carrington failed to prove she is an aggrieved employee and failed to prove a
representative claim. We conclude there was no legal error and find that substantial
evidence supports the judgment; accordingly, we affirm.
BACKGROUND
I. Complaint
In her complaint, Carrington alleged that Starbucks implemented a meal period
policy under which employees who worked slightly more than five hours were not
provided meal breaks within the first five hours of work and were not paid meal period
premiums when meal breaks were not timely provided, in violation of sections 512,
subdivision (a), and 226.7, subdivisions (a) and (b). As a result, Starbucks failed to
provide accurate itemized wage statements in violation of section 226 and failed to
provide employees with all wages earned and unpaid at termination in violation of
sections 201, 202, and 203. Carrington sought civil penalties and unpaid wages under
1 All statutory references are to the Labor Code unless otherwise specified.
2
sections 2699, subdivision (a), and 558, subdivision (a), and an award of attorney fees
and costs under section 2699, subdivision (g)(1). Carrington attached to her complaint
two letters she previously sent to the LWDA and Starbucks providing written notice of
her claims, as required under section 2699.3, subdivision (a)(1).
II. Starbucks's Summary Judgment Motions
Starbucks moved for summary judgment on Carrington's claims, arguing that
Carrington's meal break claim failed because, although her time records reflected she
twice started a break after working more than five hours and was not paid a meal
premium, Carrington could not recall the details surrounding those shifts, including
which supervisors or managers were working or why she did not begin her breaks until
more than five hours had elapsed. Starbucks argued that her lack of memory regarding
the specific instances of these shifts, coupled with Starbucks's policy to provide
employees scheduled to work shifts longer than five hours with compliant meal periods,
indicated summary judgment should be awarded in Starbucks's favor. The court denied
summary judgment, finding that Carrington created triable issues as to whether Starbucks
failed to provide timely meal breaks with her declarations that Starbucks's standard
policy was that no one could take a break without receiving permission and her manager
or shift supervisor always dictated when she could take a break.
Starbucks subsequently filed a "motion regarding trial of representative claim,"
contending a representative PAGA action was not appropriate because no uniform policy
or practice could explain why employees took a late break; as such, individualized
inquiries into each late meal break were required. Starbucks submitted more than 100
3
declarations from various California employees in support of this motion. The court
denied the motion, finding it was one "for summary judgment or adjudication in
disguise," and Starbucks had failed to comply with the procedural requirements for
summary judgment motions. (See, e.g., Code Civ. Proc., § 437c.)
III. Trial
A. Carrington's Case
1. Starbucks's Person Most Knowledgeable
Carrington's primary witness at trial was Maryann J., Starbucks's vice president of
partner resources2 for the retail operations, west division, whom Starbucks had
previously designated as its person most knowledgeable on Starbucks's meal period
policies and practices applicable in California. (See Code Civ. Proc., § 2025.230.)
Maryann testified that partners are required to document their daily time by
punching or clocking in and out at the start and end of their shifts, and at the start and end
of their breaks, using either the store's point of service system (cash register) or the
manager's back office laptop. Starbucks retains records documenting the employees'
punches. Maryann testified that these records were tied to each partner's partner number
and would accurately reflect each partner's punches in and out of the system.
Store managers were authorized to edit partners' time records and used a "punch
communication log" to document any such changes. These changes are incorporated into
the time records retained by Starbucks.
2 Starbucks refers to its nonexempt employees as "partners."
4
Maryann testified that, during the limitations period, Starbucks used two different
computerized scheduling systems to schedule partner shifts: the ALS and GLS systems.
The GLS system was the primary system Starbucks used to create work schedules.
Maryann explained that the "system will generate meal breaks on the schedule if a
partner is scheduled more than five hours." The meal breaks will always be scheduled to
start before the beginning of the fifth hour.3 Maryann testified that the scheduling
system will not schedule a meal break for a partner scheduled to work exactly five hours
or less in a workday.4 She admitted that there are occasions when a store partner is
scheduled to work less than five hours but ultimately works more than five hours. On
such occasions, the computerized scheduling system does not schedule a meal period.
Maryann testified that Starbucks uses the computerized scheduling system to
generate "daily coverage reports" which are posted in stores to communicate to partners
when they should take breaks. There is no other documentation provided to the partners
to give them notice of a scheduled meal period. Maryann testified that, ordinarily, a store
manager would print out a daily coverage report and the shift supervisor would put it on a
clipboard, modifying it throughout the day to record adjustments to the day's schedule.
3 Maryann testified that partners are entitled to a timely meal break.
4 Whether meal periods were automatically scheduled for employees scheduled to
work exactly five hours was disputed. Starbucks subsequently elicited testimony from a
systems support employee who testified that Starbucks's scheduling system would
automatically schedule a meal period for a shift of exactly five hours. Starbucks's partner
resources manager testified she did not know.
5
As modified, the daily coverage reports remained within the individual stores; Starbucks
maintains no formal record of any changes.
Maryann confirmed that the "partner guide" Starbucks provides to every newly-
hired partner states, " 'All partners in nonexempt jobs receive an uninterrupted, 30-minute
meal break if scheduled to work a shift of a minimum duration.' " She explained that, in
California, a shift of minimum duration is a work shift scheduled to be in excess of five
hours. She stated that "[a] shift scheduled to be five hours directly would not be eligible
for a meal break period."
Maryann confirmed that Starbucks's "partner resources manual"—a reference
guide provided to managers to provide them with in-depth explanations of Starbucks's
policies—similarly provided, " '[a]n unpaid . . . uninterrupted meal break of 30 minutes'
duration will be provided to each nonexempt partner . . . if scheduled to work a shift of
minimum duration.' " Maryann acknowledged that a partner's meal period could be
impacted in a number of circumstances, such as a sudden customer rush or a store partner
calling in sick for a scheduled shift. In instances where a partner's meal break was
required to be cut short, Starbucks's policy was to either provide the partner with a
"proper" meal break or pay a meal break premium.5
Maryann testified that Starbucks provided its California store managers with the
"SM 100 Partner Resources Practices California Work Rules Supplement" as a training
5 Maryann testified that Starbucks interchangeably uses the terms "meal period
premium" and "meal period penalty" to refer to the compensation a partner would be
owed if he or she was not timely provided a meal break. (§ 226.7, subd. (b).) In payroll
reports, this compensation was denominated a "break premium."
6
tool with respect to the company's California-specific meal period policies and practices.
That document states the following policies:
"The following circumstances will result in payment of a break
penalty:
[¶] . . . [¶]
"The partner is scheduled for a shift of five (5) hours or less, but is
directed by a shift supervisor, assistant store manager, or store
manager to work more than five hours and the partner is not
provided a meal break before the end of the fifth hour.
"The following circumstances will not result in payment of a break
penalty:
[¶] . . . [¶]
"The partner is scheduled to work a shift of five (5) hours or less, is
not scheduled for a meal break, and is not directed by a manager to
work more than five hours, but the actual hours worked are slightly
more than five (5) hours because of punching in slightly early or
punching out slightly late." (Italics added.)
Carrington referred to this written policy as the "slightly more" policy.6 The
following exchange occurred:
"Q. Now, the slightly more policy and practice allows the store
managers to refuse to pay a meal period premium where certain
events have occurred, correct?
"A. It provides them with an example of when they wouldn't pay a
premium, yes."
Maryann testified that partners would not be allowed to ignore their scheduled
break time and take a meal break at another time: "They should follow whatever is on
6 Carrington also used the term "slightly more" to identify the category of work
shifts at issue in the action with an initial or total duration of between five hours and one
minute (5:01) and five hours and 14 minutes (5:14), that is, "slightly more" than five
hours.
7
the [daily coverage report] unless they're—unless they make an agreement with their
manager or shift to adjust."7 Partners were not permitted to waive their meal breaks.
In the event a partner's time report indicated the partner punched out after his or
her scheduled punch-out time, the store manager was responsible for having a
conversation with the partner to determine what caused the untimely punch out and to
determine, on a case-by-case basis, whether a meal period or a meal period premium was
warranted.
Starbucks's computer scheduling system enabled managers to generate meal break
premium reports listing every shift for which a potential meal break premium should be
paid. Maryann testified managers were expected to generate this report weekly, each
time they ran payroll. In response to this report, the manager should "[h]ave a
conversation with the partner, look at the punch communication logs, have a conversation
with the shift, figure out what happened on that day to be able to determine if the—the
meal premium should be paid based on a work-related reason or if it was in error."
The following exchange occurred:
"Q. If a store partner works an initial work shift in excess of five
hours without a meal period, would Starbucks's practice
provide them with a meal period premium?
"A. They should be provided with a break or a premium."
Maryann stated that Starbucks's policy was for a partner to be paid for all time
worked, even if that time was not authorized in advance. Maryann explained:
7 "Shift" in this instance appears to refer to a shift supervisor, who worked under the
store manager to supervise partners.
8
"A. Our expectation would be that if a partner works more than five
hours, they get either a premium or they get their break.
"Q. Even if they weren't scheduled for one?
"A. Yeah. I mean, if it's work related, then absolutely."
However, Maryann repeatedly noted that supervisors should talk to partners to
determine the reason the partners worked beyond their scheduled shift, and that the
decision to pay a premium is ultimately left to the store manager's discretion.
Summarizing this line of questioning, Maryann was asked: "Okay. Okay. Let me try to
short-circuit it. I believe what you're saying is that the ultimate decision on whether to
provide a meal break penalty comes down to the store manager, correct?" Maryann
responded: "They are the decisionmaker, yes."8 Maryann also noted that Starbucks
"headquarters" would not be involved in overseeing these daily discussions between
managers and partners on whether a meal premium was due.
Maryann acknowledged that Starbucks had changed its policies relating to shifts
just over five hours in October 2015 (after plaintiff sent her initial PAGA notice),
eliminating the "slightly more" policy.
8 Maryann provided an example where it would be appropriate not to pay a meal
period premium: "The first thing that comes to my mind is if a partner was scheduled to
work, say, five hours, right, just right up to the minute, and at the end of their shift they
decided to make a partner beverage for themselves rather than going to clock out, and it
took them longer than they thought, and they clocked out at 5:01 or 5:02. [¶] So that
could be an example of where the partner would say, 'Hey, you know, I forgot'—'I made
the beverage before I clocked out, so, you know, I would agree to not be paid a penalty
and/or take a break.' "
9
2. Carrington
Carrington was employed by Starbucks as a barista between approximately
August 2013 and December 2013. She trained briefly at two different San Diego-area
stores before beginning her employment at the newly opened West Point Loma
Boulevard store.
Her time records reflect that during her employment with Starbucks, she worked
41 shifts. During at least two of these shifts, Carrington started a meal period after
working more than five hours and did not receive a premium payment.
Carrington testified that she accurately recorded her work time while employed at
Starbucks. She was familiar with the daily coverage report but testified she did not
necessarily see it during each shift because it was not always posted in the same place; it
would "move around." Her shift supervisor or manager on duty would tell her when her
break was; she knew her breaks were typically scheduled around the three- to four-hour
point into her shift.
She was required to obtain approval from her shift supervisor or manager prior to
beginning her meal periods:
"Q. Do you recall whether you were required to wait for a shift
supervisor's instruction before you started the meal period?
"A. Oh, yeah. I wouldn't just clock out and go. It would be a
discussion between them and I when to clock in or clock out.
Just because of coverage reasons, you can't leave your position
just unattended."
Carrington never refused to begin a meal period when instructed to do so. Once
instructed to start a meal break, she would "immediately" punch out to start the break.
10
Carrington never delayed in punching out to make herself a partner beverage. Given the
store's layout, Carrington said it was not possible that it would take three minutes
between the time she was instructed by a store manager to punch out, and the time she
actually punched out. She does not recall ever having discussions with her manager or
anyone else about voluntarily delaying a meal break, and she never voluntarily delayed
taking a meal break.
Carrington would work past the end of her scheduled shift "a lot of times," at the
request of her supervisor, when the store was busy and coverage was needed. Carrington
did not specifically remember the circumstances of the days when she was not afforded a
break until after the beginning of her fifth hour of work. She testified she never
complained about having a late meal break because "people would get backed up on
breaks because we would get so busy. So we were all in it together, you know. So all—I
never—I never complained. I just kept working, as directed."
3. Carrington's Expert Witness
Carrington retained a statistician to provide expert witness testimony. He was
asked to determine the number of shifts and pay periods containing either initial shift
segments or total uninterrupted shift lengths of between five hours and one minute (5:01)
through five hours and 14 minutes (5:14). He analyzed data from 8.3 million shifts and
determined that there were over 133,000 shifts (1.6 percent) with this duration. Of these
shifts, nearly 102,000 (76 percent) did not result in a meal break penalty payment.
Carrington's expert testified that his analysis was validated by the analysis of Starbucks's
11
expert, who opined that 74 percent of shifts slightly in excess of five hours did not
receive a meal break penalty.
B. Starbucks's Case
1. Starbucks's "Partner Resources Manager"
Starbucks called Dora R., its "partner resources manager," who performs human
resources services for Starbucks, including training new managers on Starbucks's
California meal break policies and practices. Dora testified that Starbucks's policy is
"that any partner who's scheduled for a shift of more than five hours is entitled and will
be scheduled for a meal break." Starbucks's automated time system schedules meal
breaks automatically into the daily schedules. For partners scheduled for shifts of less
than five hours' duration, meal breaks are not automatically scheduled. If a partner with a
shift scheduled for less than five hours' duration needs to work longer than five hours,
their shift supervisor must either schedule a meal break for them (by writing it into the
daily schedule) or "award[] the one-hour penalty."
The store manager is ultimately responsible for the decision whether to pay the
partner a meal period premium. The store managers are trained to talk to the store
partners before making these decisions, but Dora explained that Starbucks is not able to
ensure these conversations occur "in every situation" given the number of stores and
partners. Dora testified that Starbucks does not require store managers to document—on
the daily coverage reports—that they investigated to determine whether a meal break
should have been scheduled or a meal break premium paid. However, Dora later stated
that if a partner's time report reflected a missed meal break, or a meal break that was not
12
timely provided, the store manager should record the reason why in a "meal break
analysis report":
"Q. Does Starbucks retain the meal break analysis reports?
"A. Yes.
"Q. And within those meal break analysis reports, it's true that the
manager should record the reason why each partner's time
worked reflects a missed meal break?
"A. Yes, they should.
"Q. Okay. And that also includes where a timely meal break has
been missed, correct?
"A. Correct."9
2. Starbucks's Expert
Starbucks retained an expert witness who analyzed over 5.7 million shift records
from 27,146 employees in 490 stores, purportedly representing 25 percent of California
stores. Of those shifts, only 0.61 percent had first segment durations between five hours,
one minute (5:01) and five hours, six minutes (5:06), and 0.31 percent of all shifts had
total shift durations between five hours, one minute (5:01) and five hours, six minutes
(5:06). Analyzing only this small subset of shifts (total or first segment durations of
9 It does not appear that any "meal break analysis reports" were introduced as
evidence at trial.
13
5:01-5:06), he concluded that meal period penalties were paid in 26 percent of these
shifts.10
Starbucks's expert testified that there was no information in the data to identify
whether an employee had the opportunity to take a meal and chose not to do so: "it's not
as though there is a flag on the data that says, you know, 'I took the—I had the
opportunity, but I waived a meal.' " He further testified his data analysis indicated "there
is a statistically significant variation between store managers" meaning, "there are some
store managers . . . that maybe never pay a meal premium [to partners who worked a shift
or shift segment of 5:01-5:06 but did not take a meal break]. There are others that always
pay a meal period premium."
3. Starbucks's Systems Engineer
Starbucks elicited testimony from Holly K., a systems engineer who provided
support for the company's GLS system. She testified that the GLS system is designed to
automatically populate schedules with a duration of five hours or more with a meal break.
4. West Point Loma Boulevard Starbucks Store Manager
Stacey S. testified she was the current manager of the West Point Loma Boulevard
store (where Carrington previously worked, under different management). Stacey
testified that partners who work more than five hours without a meal break are entitled to
premium pay. She testified that employees are expected to clock out promptly.
10 In his expert report, Starbucks's expert stated that, as part of his analysis, he also
ran the same analysis with a shift duration of five hours, one minute (5:01) to five hours,
ten minutes (5:10) and "confirmed [his] conclusions and opinions in this report do not
change."
14
However, she was aware of instances (not under her management) in which a partner for
"personal reason[s]" stayed past the five-hour mark without clocking out either to go
home or for a meal break. She emphasized that such instances were "not very common."
C. Trial Court's Determination of Liability
Based on the testimonial and documentary evidence admitted at trial, the court
found Carrington had established she individually suffered at least two meal period
violations. While the violations were minimal, they were ascertainable, and because they
were ascertainable, the de minimis exception should not apply. The court found that
Carrington had established a representative claim primarily through the testimony of
Maryann, whom Starbucks had designated as its person most knowledgeable on the
practices at issue, and whom the court found to be credible.
D. Penalty Phase
Following the liability phase, the court accepted the parties' briefing on penalties.
Plaintiff argued penalties ranging from $25 to $75 per violation were appropriate and
requested the imposition of nearly $70 million in total penalties, over $25 million of
which was attributable to plaintiff's section 512 and 226.7 claims. Starbucks argued that
the evidence at trial demonstrated "exemplary meal break compliance" and emphasized
the trial court had found only "greatly minimal" violations; as such, only a minimal
penalty—no more than $200,000—should be imposed.
In its tentative assessment of the penalty, the court emphasized that Starbucks's
violations were minimal and Starbucks attempted full compliance with California's meal
period requirements. Nonetheless, the court found penalties were warranted for the
15
violations that Carrington established. Rather than imposing the full penalty of $50 per
violation, which the court noted in this instance would be unjust, arbitrary, and
oppressive, the court imposed a penalty of only $5 per violation. Noting that plaintiff's
and defendant's experts found similar instances of violations, the court found
approximately 30,000 violations had occurred and imposed a penalty of $150,000. The
court declined to impose penalties for the additional statutory violations plaintiff had
pleaded.
E. Judgment
After issuing a statement of decision, the court entered judgment in favor of
Carrington both in her individual and representative capacities and assessed a total
penalty of $150,000 against Starbucks, with 75 percent of that amount to be paid to the
LWDA and the remaining 25 percent to be paid to the aggrieved employees, consistent
with section 2699, subdivision (i). The court indicated costs and fees would be
determined by subsequent motion.
IV. Appeal
Starbucks filed the current appeal. Carrington subsequently filed a cross appeal.
The appeals were consolidated, but the parties later stipulated to the dismissal of
Carrington's cross appeal. As such, only Starbucks's challenges to the judgment remain.
Starbucks argues that it demonstrated "comprehensive meal break policies and
practices that exceed the requirements of California law," that Carrington
"overwhelmingly" took compliant breaks and has "no evidence" of meal break violations,
and that the data reflecting other aggrieved employees likewise demonstrates "exemplary
16
meal break compliance." Starbucks contends the judgment should be reversed because
Carrington failed to prove she is an aggrieved employee and failed to prove a
representative claim.
DISCUSSION
I. Applicable Law
A. Standard of Review
"[I]n reviewing a judgment based upon a statement of decision following a bench
trial, 'any conflict in the evidence or reasonable inferences to be drawn from the facts will
be resolved in support of the determination of the trial court decision. [Citations.]'
[Citation.] In a substantial evidence challenge to a judgment, the appellate court will
'consider all of the evidence in the light most favorable to the prevailing party, giving it
the benefit of every reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by
the trial court's credibility determinations. [Citations.] Moreover, findings of fact are
liberally construed to support the judgment. [Citation.]" (Estate of Young (2008)
160 Cal. App. 4th 62, 75-76; accord, Sav–On Drug Stores, Inc. v. Superior Court (2004)
34 Cal. 4th 319, 334 [" 'questions as to the weight and sufficiency of the evidence, the
construction to be put upon it, the inferences to be drawn therefrom, the credibility of
witnesses . . . and the determination of [any] conflicts and inconsistencies in their
testimony are matters for the trial court to resolve' "].)
We "start with the presumption that the record contains evidence sufficient to
support the judgment; it is the appellant's burden to demonstrate otherwise." (Baxter
17
Healthcare Corp. v. Denton (2004) 120 Cal. App. 4th 333, 368.) As such, the appellant is
required to provide a summary of all of the evidence, not merely his or her own evidence,
with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Foreman & Clark
Corp. v. Fallon (1971) 3 Cal. 3d 875, 881 (Foreman & Clark Corp.).)11
"Questions of statutory interpretation, and the applicability of a statutory standard
to undisputed facts, present questions of law, which we review de novo. [Citation.]"
(Jenkins v. County of Riverside (2006) 138 Cal. App. 4th 593, 604.)
B. PAGA
"Under the Labor Code, the [LWDA] and its constituent departments and
divisions are authorized to collect civil penalties for specified labor law violations by
employers. [Citation.] To enhance the enforcement of the labor laws, the Legislature
enacted PAGA in 2003." (Home Depot U.S.A., Inc. v. Superior Court (2010)
191 Cal. App. 4th 210, 216 (Home Depot).) In doing so, the Legislature "declared that
adequate financing of labor law enforcement was necessary to achieve maximum
compliance with state labor laws, that staffing levels for labor law enforcement agencies
had declined and were unlikely to keep pace with the future growth of the labor market,
11 Starbucks neglected to include in the record (among other things) a copy of
plaintiff's expert's declaration. Carrington argued this evidence lent significant support to
the judgment and Starbucks's failure to include it justified dismissal of the appeal.
Starbucks responded that this argument is "frivolous" and the evidence is "not relevant,"
although Starbucks included its own expert's declaration in the record. While we decline
to dismiss the appeal, we find that, in failing to include these documents in the appellate
record and in failing to recognize evidence adduced at trial unfavorable to its arguments
on appeal (as discussed further, post), Starbucks did not fully comply with California
Rules of Court, rule 8.204(a)(1)(C).
18
and that it was therefore in the public interest to allow aggrieved employees, acting as
private attorneys general, to recover civil penalties for Labor Code violations, with the
understanding that labor law enforcement agencies were to retain primacy over private
enforcement efforts." (Arias v. Superior Court (2009) 46 Cal. 4th 969, 980 (Arias).)
Under PAGA, "an 'aggrieved employee'—a person affected by at least one Labor
Code violation committed by an employer—[may] pursue penalties for all the Labor
Code violations committed by that employer." (Huff v. Securitas Security Services USA,
Inc. (2018) 23 Cal.App.5th 745, 751 (Huff).) Previously, such civil penalties could be
collected only by the LWDA. (Home Depot, supra, 191 Cal.App.4th at p. 216.)
Seventy-five percent of any penalties collected by a PAGA representative are distributed
to the LWDA, while the remaining 25 percent are distributed to the aggrieved employees.
(§ 2699, subd. (i).) Because PAGA allows a representative plaintiff to recover civil
penalties on behalf of the state, "[a] PAGA representative action is . . . a type of qui tam
action." (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 382.)
Statutory class action requirements are not applicable to PAGA claims. (Arias, supra,
46 Cal.4th at p. 975.)
C. California Meal Break Requirements
"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." (§ 512, subd. (a).) An employer who fails to provide a required meal break
19
"shall pay the employee one additional hour of pay at the employee's regular rate of
compensation for each workday that the meal . . . period is not provided." (§ 226.7,
subd. (c).) "[A]n employee is entitled to the additional hour of pay immediately upon
being forced to miss a . . . meal period." (Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal. 4th 1094, 1108.)
An employer's obligation to provide a meal period to its employees is satisfied "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." (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal. 4th 1004, 1040 (Brinker).) "[T]he 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 relieved
employee during a meal break does not thereby place the employer in violation of its
obligations and create liability for premium pay . . . ." (Id. at pp. 1040-1041.) However,
"if the employer knows that meal breaks are missed, shortened, or unduly delayed
because the employer has instructed the employee to work, or has otherwise impeded the
taking of breaks, [the employer's] duty is contravened, absent a suitable waiver or
agreement by the employee." (Safeway, Inc. v. Superior Court (2015) 238 Cal. App. 4th
1138, 1155.) "[U]nder those circumstances, the employee is 'immediately' entitled to the
premium wage, without any demand or claim to the employer . . . ." (Ibid.)
An initial violation of these meal period requirements subjects the employer to a
civil penalty of $50 "for each underpaid employee for each pay period for which the
20
employee was underpaid in addition to an amount sufficient to recover underpaid wages."
(§ 558, subd. (a)(1); Brewer v. Premier Golf Properties, LP (2008) 168 Cal. App. 4th
1243, 1253-1254 [§ 558 establishes penalties for employers violating meal and rest break
requirements]; Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal. App. 4th
1112, 1152-1153 (Thurman) [§ 558 sets forth civil penalties for missed rest periods].)
II. Carrington Proved She Is an Aggrieved Employee
Starbucks contends that Carrington failed to demonstrate she is an aggrieved
employee with an individual claim. Starbucks asserts three, related arguments:
(1) Carrington never experienced the "specific violation" she alleges; (2) Starbucks
provided her the requisite breaks; and (3) the alleged violations were de minimis and thus
not actionable. We conclude all these arguments lack merit.
A. Carrington Experienced the Violation Alleged
Carrington's time records established that on November 2, 2013 and December 22,
2013, she worked more than five hours without taking a meal break and did not receive a
premium payment. Although Carrington admitted she did not remember the details
surrounding those shifts, she testified that she accurately recorded her work time while
employed at Starbucks; she was required to obtain approval from her supervisor prior to
beginning her meal break; she never refused to begin a meal break when instructed to do
so; and once instructed to start a meal break, she would "immediately" punch out to start
the break. This is substantial evidence supporting the trial court's conclusion that
Starbucks did not provide Carrington meal breaks as required by law in these instances.
(Estate of Young, supra, 160 Cal.App.4th at pp. 75-76.)
21
Starbucks insists that Carrington never suffered the "specific violation" alleged in
her complaint and at trial. According to Starbucks, "Carrington repeatedly made clear
before trial that she sought to challenge Starbucks'[s] purported 'policy' of refusing to pay
a premium in one situation: when partners are scheduled to work five hours or less but
unexpectedly work slightly longer without taking a meal break." Starbucks contends
Carrington did not experience this specific violation—because for the one shift she
worked more than five hours without ever taking a meal break, she was paid a premium,
and for the two other shifts in which she worked more than five hours, she did take a
meal break (albeit late, after the start of her fifth hour of work). Starbucks also points out
that, on these latter two occasions, Carrington was originally scheduled to work shifts
longer than five hours, and as such should have been scheduled to take a timely break;
Starbucks contends these shifts are thus outside of the violation she has alleged.
Starbucks's argument fails because it does not accurately describe Carrington's
claims. As authority for its position that Carrington's "theory concerns only certain shifts
in which a meal break is 'never provided,' " Starbucks cites Carrington's trial brief, in
which she stated, "Ms. Carrington alleges that on specific—and limited—work shifts,
Starbucks'[s] uniform policies and practices violate [sections] 226.7 and 512, among
other statutes. For example, it is undisputed that (1) Starbucks never schedules (and thus
never 'provides') a meal period for its employees who are scheduled to work a shift of
5 hours or less, and (2) where the referenced employee actually works 'slightly more' than
5 hours, no meal period is ever scheduled, and no meal period penalty is ever provided to
the impacted employee." In another portion of her trial brief, Carrington stated, "The
22
primary issue is whether Starbucks'[s] practice (including its verified policies) of refusing
to provide either (1) timely meal periods or (2) meal period premiums, is illegal. For
example, Starbucks admits to possessing a written policy where store partners who
(a) were scheduled by Starbucks to work '5 hours or less,' but (b) actually worked
'slightly more than 5 hours,' are not provided a meal period, or a meal period premium."
When read in context of the entire case, these statements cannot be construed so narrowly
as to exclude Carrington's claimed violation that on two occasions she received a late
meal period without being paid a meal period premium.
The operative complaint averred that California law prohibits an employer from
employing an employee for a work period of more than five hours a day without
providing the employee with a meal period, and that an employer who fails to provide the
meal breaks "as required" must pay the employee the premium payment. The complaint
further averred that "employees were denied the protections and benefits of the Labor
Code and IWC Wage Order(s) due to Defendant's standard practices," that "Defendant
possessed (and possesses) a Meal Period Policy which affirmatively states that a Meal
Period Payment will not be administered where an employee works 'slightly more' than
5 hours without being provided a meal period," and that Starbucks's "institutional and
established practices . . . are illegal, in that Plaintiff and all other aggrieved employees
were denied proper and/or timely meal periods and/or meal period payments." (Italics
added.) The operative complaint identifies the following common issues: "Whether
[Starbucks] failed to provide its employees with statutorily-compliant meal periods in
violation of, inter alia, . . . section[s] 510 and 226.7, in that [Starbucks's] written policies
23
are not compliant with California law" and "[w]hether [Starbucks] failed to properly
provide meal period premiums in accordance with the law." Carrington's PAGA letter to
the LWDA similarly stated, "Starbucks failed to comply with . . . sections 226.7 and 512,
in that it possessed (and possesses) a Meal Period Policy which affirmatively states that a
Meal Period Payment will not be provided where an employee works 'slightly more than
5 hours.' This policy/practice violates California law, as confirmed in Brinker v. Superior
Court, because it fails to provide a Meal Period prior to the end of an employee's first
five hours of employment." (Italics added.)
Considering the allegations in the complaint along with the statements in the
PAGA letter and trial brief together, we are not persuaded by Starbucks's claim that
Carrington's action is limited strictly to employees who were originally scheduled to
work shifts of five hours or less. The claims reasonably encompass employees who, like
Carrington, worked slightly more than five hours without being provided a timely meal
break or paid a meal period premium. There was sufficient evidence at trial that
Carrington experienced one of the violations she alleges because she was twice provided
meal breaks after more than five hours of work. Provision of a late meal period does not
satisfy California's meal period requirements: "[A]bsent waiver, section 512 requires a
first meal period no later than the end of an employee's fifth hour of work . . . ."
(Brinker, supra, 53 Cal.4th at p. 1041, italics added.) Provision of a meal period later
than the end of Carrington's fifth hour of work thus violates section 512 and triggers the
employer's obligation to pay a meal period premium under section 226.7, subdivision (b).
24
We therefore reject Starbucks's contention that Carrington did not suffer the
"specific" meal break violation she alleged in her complaint or at trial. Carrington's
complaint was not limited to a single type of violation—it instead can fairly be construed
to encompass both late meal breaks and the failure to provide meal break premiums. The
fact that she experienced a violation that may differ from other employees does not bar
her claims here. (Huff, supra, 23 Cal.App.5th at p. 750 [an aggrieved employee who
brings a representative PAGA action "may seek penalties not only for the Labor Code
violation that affected him or her, but also for different violations that affected other
employees"].)
B. Starbucks Did Not Provide Compliant Meal Breaks
Starbucks next argues that the evidence at trial showed that Starbucks made proper
breaks available to Carrington, satisfying its obligation to provide a meal break, even if
Carrington neglected to timely take it. Although Starbucks correctly notes it was not
required "to police meal breaks and ensure no work thereafter is performed" (Brinker,
supra, 53 Cal.4th at p. 1040), we reject Starbucks's claims that it satisfied its obligation
here.
In arguing that it complied with its obligation to provide compliant breaks,
Starbucks ignores the evidence adduced at trial unfavorable to its position, which
supports the trial court's conclusion to the contrary. (Foreman & Clark Corp., supra,
3 Cal.3d at p. 881 [Defendants arguing that " 'some particular issue of fact is not
sustained . . . are required to set forth in their brief all the material evidence on the point
and not merely their own evidence. Unless this is done the error is deemed to be
25
waived.' "].) Carrington testified that when the store was busy and coverage was needed,
at her supervisor's request she would work past the end of her scheduled shift "a lot of
times." She was not permitted to start her break until she received approval from her
supervisor, and she would immediately punch out once her supervisor instructed her to
start her meal break. This testimony, coupled with Carrington's time records
demonstrating she twice worked shifts in excess of five hours without a timely meal
break and without payment of a meal period premium, is substantial evidence to support
the trial court's conclusion that Starbucks did not provide Carrington with a meal break or
the required premium payment on at least two occasions. (See Brinker, supra, 53 Cal.4th
at p. 1040 [employer may not "impede or discourage" employees from taking compliant
meal breaks].)
C. The De Minimis Doctrine Does Not Preclude Liability Here
Starbucks contends the violations Carrington experienced were so brief that they
are not actionable, and Starbucks should be entitled to judgment. Our Supreme Court
recently rejected Starbucks's de minimis rule argument, albeit in a different context, in
Troester v. Starbucks Corp. (2018) 5 Cal.5th 829 (Troester). In that case, the Supreme
Court held that California law does not permit application of the de minimis rule where
the employer required the employee to work " 'off the clock' " several minutes (in that
case, four to 10 minutes) per shift. (Id. at p. 835.) However, Troester explicitly left open
the question of "whether there are wage claims involving employee activities that are so
irregular or brief in duration that employers may not be reasonably required to
26
compensate employees for the time spent on them." (Id. at p. 848.) Starbucks argues this
is just such a case. We disagree.
In Troester, the court recognized that "one of the main impetuses behind the de
minimis doctrine in wage cases is 'the practical administrative difficulty of recording
small amounts of time for payroll purposes.' " (Troester, supra, 5 Cal.5th at p. 848.) On
this record, however, there is no indication of a practical administrative difficulty
recording small amounts of time for payroll purposes. To the contrary, the evidence here
indicated that Starbucks's partners' time records accurately reflected partners' start and
stop times, including the times they punched in and out for meal breaks. In addition,
store managers were trained (1) to talk to partners about any meal periods that were not
timely taken; (2) to determine whether a meal break premium should be paid; and (3) to
document their findings. The fact that store managers did not consistently follow these
practices does not mean it was administratively impossible or impractical to do so. We
reject Starbuck's claim that the de minimis doctrine applies here.
III. Carrington Proved a Representative Claim
A. Substantial Evidence Supports the Conclusion That Starbucks Had a Non-
compliant Policy and Practice
Again relying only on evidence favorable to it, Starbucks contends the evidence
adduced at trial established it provided timely meal breaks or premium payments and that
Carrington failed to prove a representative claim. We emphasize that it is not our role to
reassess credibility or reweigh the evidence; rather, "our review begins and ends with the
determination as to whether, on the entire record, there is substantial evidence,
27
contradicted or uncontradicted, which will support the trial court's factual
determinations." (Ermoian v. Desert Hospital (2007) 152 Cal. App. 4th 475, 501.)
Applying this standard, we conclude the trial court's determination that Carrington
established a violation on a representative basis is supported by substantial evidence.
Carrington relied on Maryann, whom Starbucks designated in discovery as its
person most knowledgeable, to provide testimony regarding Starbucks's policies and
practices regarding meal breaks. Maryann's testimony established that Starbucks utilized
a computerized scheduling system to schedule partners' shifts. The system automatically
scheduled meal breaks to begin prior to the start of the partner's fifth hour of work, but
only if the partner was scheduled for a shift in excess of five hours. For partners
scheduled to work exactly five hours or less, a meal break would not be pre-scheduled.
Starbucks did not permit partners to waive their meal period.
In instances where partners worked in excess of five hours but a meal break was
not pre-scheduled, partners relied on their managers or supervisors to provide timely
breaks or to subsequently (at the weekly running of payroll) arrange for the payment of a
meal period premium. Starbucks's written policies emphasized that payment of the meal
period premium was not automatic; the manager must act to pay premiums due.
Maryann and Dora both confirmed the managers are the ultimate decision-makers
delegated authority to determine whether a meal break is provided and whether a
premium is paid. Partner payroll records demonstrated that, in the vast majority of
instances where a partner worked an initial or total shift in excess of five hours but
shorter than five and a quarter hours (such that they were not provided a timely meal
28
break), they were not paid the meal period premium. Indeed, plaintiff's expert concluded
that meal period premiums were unpaid in approximately 76 percent of these instances;
defendant's expert concluded that meal period premiums were paid in approximately
26 percent of these instances (and were thus unpaid in approximately 74 percent of these
instances). Altogether, this is substantial evidence to support the conclusion that
Starbucks's policies and practices resulted in numerous instances in which employees
working "slightly more" than five hours were neither provided meal breaks nor paid meal
period premiums, in violation of the law.
We likewise conclude that Starbucks has not established legal error.
"[S]ection 512 requires a first meal period no later than the end of an employee's fifth
hour of work . . . ." (Brinker, supra, 53 Cal.4th at p. 1041.) The trial court recognized
that the violations occurred in only a narrow circumstance and described the violations as
"minimal." Nonetheless, the trial court properly concluded that the failure to provide
timely meal breaks or pay meal period premiums to employees working shift durations
slightly in excess of five hours violated California's meal break requirements. (§§ 226.7,
512.)
B. The Evidence Was Not Overly Individualized to Preclude a Representative
Finding
Starbucks contends Carrington's experience was individualized, emphasizing that
she worked with several other untrained, new employees in a newly opened store that
was run "haphazardly" by the then-manager. As such, Starbucks contends, her
experience cannot support the finding of a violation on a representative basis. Because
29
this was a PAGA action, Carrington was not required to fulfill strict class action
procedural requirements. (Arias, supra, 46 Cal.4th at p. 975.) Nonetheless, Carrington's
primary evidence, provided through Starbucks's written policies and the testimony of a
witness Starbucks designated as the one most knowledgeable on the subject, established
that generally applicable corporate policies and procedures resulted in numerous
employees with initial or total shifts slightly in excess of five hours not being provided
with timely meal breaks and not being paid meal period premiums, in violation of the
law. This case is thus distinguishable from South Bay Chevrolet v. General Motors
Acceptance Corp. (1999) 72 Cal. App. 4th 861, 897, where plaintiff's PAGA claim failed
because the evidence showed defendant's practices "were not sufficiently uniform to
allow representative treatment." For this reason and for the reasons previously discussed,
we conclude substantial evidence supports the judgment on Carrington's representative
claim.
C. Starbucks Has Not Established Prejudicial Error with Respect to the Time
Records
Starbucks also challenges Carrington's reliance on time records, contending these
records were used improperly to establish meal break violations. In support of this
argument, Starbucks cites a number of federal district court cases concluding that time
records alone cannot establish why breaks were taken late. (E.g., Manigo v. Time Warner
Cable, Inc. (C.D.Cal. Oct. 17, 2017, No. CV 16-06722-JFW (PLA)) 2017 WL 5054368
[concluding time records alone are insufficient to create a material factual dispute
regarding meal period compliance, as they do not indicate why the breaks were taken];
30
Roth v. CHA Hollywood Medical Center, L.P. (C.D.Cal. Oct. 25, 2013, No. 2:12-CV-
07559-ODW) 2013 WL 5775129 [denying class certification under the federal rules of
procedure where plaintiff failed to establish the existence of common questions of
liability through common evidence].) Here, however, partner time records were not used
to establish why breaks were taken late.12 Rather, as discussed ante, Carrington
provided evidence to establish that breaks were taken late (or not at all) as a result of
Starbucks's policies and practices of not automatically scheduling a break or premium
payment for initial shifts with a duration of five hours and relying on managers to either
schedule meal breaks or pay meal period premiums when employees scheduled to work
less than or exactly five hours ultimately worked slightly longer. The time records were
used in conjunction with this other evidence to allow the trial court to quantify potential
violations and in turn devise an appropriate penalty.13 We thus reject Starbucks's
contention that the trial court erred by relying exclusively on the payroll records to
establish liability.
Starbucks further contends that the time records cannot be used to establish a
rebuttable presumption that violations occurred. (But see Brinker, supra, 53 Cal.4th at
p. 1053 (conc. opn. of Werdegar, J.) ["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
12 There is no dispute that the time records do not indicate why a break was missed
or taken late. Both parties' experts testified they were unable to discern from the data
why a break was taken late or not at all.
13 Starbucks does not challenge the penalty imposed.
31
relieved of duty and no meal period was provided."].) Starbucks argues that the
rebuttable presumption discussed in Justice Werdegar's concurring opinion in Brinker "is
not the law" because a concurrence " 'is not binding precedent.' " Even if the
presumption discussed in Justice Werdegar's concurrence is not binding precedent, as
Starbucks argues, it may nonetheless be persuasive, providing guidance to trial courts in
certain circumstances.14 (See People v. Barba (2013) 215 Cal. App. 4th 712, 734, fn. 7.)
Nonetheless, because plaintiff here established the existence of Starbucks's noncompliant
meal period practices primarily through Starbucks's written policies and Maryann's
testimony, and not primarily with time records, we decline to determine the nature or
effect of any rebuttable presumption that might be created by such time records.
Starbucks alternatively argues that, even if the time records could establish a
presumption that violations occurred, it rebutted that presumption by proving that
employees skipped or delayed breaks for personal reasons. In support of this argument,
Starbucks cites testimony of Maryann, Dora, and Stacey, each of whom offered
testimony that an employee might "choose" to work past the start of their fifth hour "for
personal reasons," such as making a partner beverage, using the bathroom, or talking to a
customer. Maryann testified hypothetically that a partner might be scheduled to work
exactly five hours, and before clocking out, choose to make a partner beverage, resulting
14 Starbucks itself cites in its opening brief on appeal to no fewer than 30 federal
district court opinions, most of which were not published in a federal reporter, and which,
"at best," may be described as persuasive. (Castaneda v. Department of Corrections &
Rehabilitation (2013) 212 Cal. App. 4th 1051, 1074 [" 'a decision of a federal district court
has no precedential value in this court; at best, it is persuasive authority only' "].)
32
in clocking out a minute or two late. "So that could be an example of where the partner
would . . . 'agree to not be paid a penalty and/or take a break.' " Dora, the partner
resources manager, similarly testified to a hypothetical scenario where a partner's choice
to make a partner beverage prior to clocking out would result in a shift in excess of five
hours that she claimed would not warrant a premium payment. Stacey, the store
manager, testified anecdotally that she had seen this happen: "So if somebody is asked to
clock out and they choose to use the restroom or make themselves a beverage or, you
know, are chatting with a customer" they might work longer than five hours. Stacey
emphasized that this was "not very common" and did "not [happen] often." We cannot
agree with Starbucks that this testimony, which is more conjecture than evidence,
constitutes proof that employees actually skipped or delayed breaks for personal reasons,
sufficient to rebut the violations established by plaintiff.
Moreover, Carrington was not required to show that Starbucks's policies
universally precluded employees from taking all meal breaks. What is required—and
what Carrington established here—is that Starbucks's generally applicable policies
resulted in noncompliance with meal period requirements. (See Alberts v. Aurora
Behavioral Health Care (2015) 241 Cal. App. 4th 388, 409 [noting in discussion of class
certification requirements that "Brinker . . . does not require [claimants] to establish the
universal application of an allegedly illegal policy; rather, a [claimant] need only show a
'consistent[]' application of the policy"]; accord Faulkinbury v. Boyd & Associates, Inc.
(2013) 216 Cal. App. 4th 220, 235 [Noting in the class certification context that "the
employer's liability arises by adopting a uniform policy that violates the wage and hour
33
laws. Whether or not the employee was able to take the required break goes to
damages . . . ."].)
D. Starbucks Was Not Precluded from Presenting Its Defenses
Starbucks argues that the trial court effectively required it "to prove the specific
circumstances of each of the roughly 30,000 shifts in the time records that could
potentially be violations." This, Starbucks contends, violates due process and strips it of
its right to present a defense. But Starbucks cites no record evidence provided at trial
(other than the anecdotal or hypothetical references mentioned ante) to establish that any
partner shifts worked in excess of five hours without a break were worked for personal
reasons, such that payment of the meal period premium was not required. Nor does
Starbucks argue it sought to introduce evidence that was excluded or disregarded by the
trial court. As such, we find no basis to support Starbucks's claim that it was deprived of
due process because it did not have the opportunity to present defense evidence.
E. Starbucks's Good Faith Attempt to Comply with the Law Is Reflected in the
Penalty Imposed
Although the trial court may have disagreed with Starbucks regarding the issue of
liability, it clearly took the circumstances proffered by Starbucks into consideration when
it imposed the penalty, as evident from the significant reduction of the $50 maximum
penalty (per initial violation) to the penalty imposed—only $5 per initial violation. The
trial court stated this reduction was warranted because imposing the maximum penalty
would be unjust, arbitrary, and oppressive based on Starbucks's "good faith attempts" to
comply with meal break obligations and because the court found the violations were
34
minimal. As the court in Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157,
1213 recognized, the trial court may "exercise its discretion to award lesser penalties
based on the enumerated considerations" in section 2699, subdivision (e)(2), which
include a determination that imposition of the maximum statutory penalty would result in
an award that is unjust, arbitrary, oppressive, or confiscatory. (Accord Thurman, supra,
203 Cal.App.4th at p. 1136 [affirming trial court's 30 percent reduction of maximum
penalty].)
DISPOSITION
The judgment is affirmed. Carrington is entitled to costs on appeal.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
35
Filed 12/19/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KILEIGH CARRINGTON, D072392
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00018637-
CU-OE-CTL)
STARBUCKS CORPORATION,
ORDER CERTIFYING OPINION
Defendant and Appellant. FOR PUBLICATION
THE COURT:
The opinion in this case filed November 27, 2018, was not certified for
publication. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for
publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
McCONNELL, P. J.
Copies to: All parties
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