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UPDATED! Brinker: The Wait Is Almost Over

December 21, 2011

UPDATED 12/21/2011: Based on the date on which the case was submitted at oral argument, the California Supreme Court was required to render a decision in this matter on or before February 6, 2012. On December 2, 2011, however, the Supreme Court agreed to accept additional briefing regarding whether its decision will be applied retroactively. The additional briefing likely will cause the Court’s decision to be delayed. Based on the current briefing schedule it appears that we could be waiting for a decision until April 2012.

Original Post:

On November 8, 2011, the California Supreme Court heard oral argument in Brinker Restaurant Corp. v. Superior Court of San Diego County (“Brinker”). As you probably know, the Brinker case has been pending before the California Supreme Court since October 22, 2008. Now, by hearing oral argument on this case, the California Supreme Court has effectively signaled that it will publish a decision within the next 90 days.

The Brinker lawsuit centers on the language contained in California Labor Code section 512, which states that “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.” At issue in Brinker is whether, based on the language of this statute, an employer must ensure that its employees take meal breaks, or merely make meal breaks available to their employees.

In typical and customary fashion, the Supreme Court justices began asking questions very early into the Plaintiff’s oral argument. Justice Kennard wasted no time asking whether or not employers must ensure that employees take meal breaks or merely make meal breaks available, and appeared focused on the language of California Labor Code section 512, which states that meal and rest breaks must be “provided” by employers. Plaintiff’s counsel argued that the history of California wage orders demonstrates that employers must go beyond merely providing an opportunity for employees to take meal and rest breaks, and must ensure that they are taken. But, this did not end the inquiries. Justice Kennard followed up with additional questions about how it would be practical to require an employer to ensure that potentially hundreds, or even thousands, of workers actually took their meal breaks. Justice Liu followed up with additional questions about why workers would not be better protected if they had flexibility to take a meal break at their discretion, asking “isn’t the most worker friendly interpretation of this … that the worker should be able to do whatever he or she wants during a meal period?”

Counsel for Brinker Restaurant Corporation then argued that none of the California wage orders state an employer must require an employee to take a 30-minute meal break. Rather, Brinker’s counsel argued (not surprisingly) that Brinker believes employers have an obligation only to make meal periods available to employees.

During the oral argument presented by Brinker’s counsel, the justices shifted their focus away from the availability of meal breaks, and questioned Brinker’s counsel regarding the timing of meal breaks made available by employers. Predictably, Brinker’s counsel pointed out that nothing in the California Labor Code requires that meal periods be provided at any particular time. Perhaps seizing on the theme created earlier in the session by the Justices, Brinker’s counsel argued that employers, as well as employees, should have flexibility as to when meal breaks are taken.

After more than three years of waiting for the California Supreme Court to hear oral argument on the Brinker case, oral argument before the California Supreme Court ended only about 30 minutes after it began. Accordingly, the Brinker case is now under submission before the California Supreme Court. Because the court is required to render its decision within 90 days, we now know that the long wait for a decision in Brinker will be over by February 6, 2012.