California Supreme Court Depublishes Salazar v. See's Candy
On August 11, 2021, the California Supreme Court depublished the Court of Appeal’s opinion in Salazar v. See's Candy Shops Incorporated (2021) 64 Cal.App.5th 85, after receiving a request for depublication by Ari Stiller on behalf of the Consumer Attorneys of California, in addition to similar requests from several other interested groups.
In Salazar, a candy shop worker alleged that See’s failed to provide lawful second meal periods to her and other employees. (Salazar, supra, 278 Cal.Rptr.3d at p. 453.) The trial court denied class certification based on an inference that managers sometimes provided second meal breaks despite there being no means of authorizing them on the employee schedule. The Court of Appeal affirmed under the theory that individual managers could have provided breaks even if See’s failed to schedule them. (Id. at pp. 458–459.) The appellate court agreed with the trial court that the presence of occasional clock-out times for second meal breaks in employee time records could give rise to an inference that managers offered breaks, even if they weren’t scheduled. (Id. at p. 458.)
Mr. Stiller’s amicus letter argued for depublication because the Court of Appeal misstated the law. In California, the fact that time records show breaks does not create an inference that the breaks were provided. Other courts have held that the mere fact that an employee took a break on a specific day might mean that the employee can’t recover damages for that day, but this fact doesn’t absolve an employer from liability for failing to provide breaks in general. (Lubin v. The Wackenhut Corporation (2016) 5 Cal.App.5th 926, 956.) In other words, the Salazar court was wrong to say that the employer would only be liable if it “consistently denied” breaks. In California, employers have an affirmative duty to provide them. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033; Benton v. Telecom Network Specialists, Inc. (2013) 220 Cal.App.4th 701, 728.)
