As we previously reported here, on July 22, 2008, in Brinker v. Superior Court, the California Court of Appeal held that while an employer is required to "provide" to non-exempt employees at least one unpaid, duty-free meal period of at least 30 minutes each workday of more than 6 hours, the obligation to "provide" required meal periods means to make the required meal periods available and not to ensure that employees take all required meal periods. This was good news for employers and especially good news to numerous employers defending against claims of alleged meal period violations.
The good news was short lived, however. Just two months later, on October 22, 2008, the California Supreme Court granted the plaintiff's petition for review of the Court of Appeal's decision in Brinker. As a consequence, employers defending lawsuits alleging violation of meal period requirements could no longer cite Brinker as authority that an employer is not required to ensure that employees take all required meal periods made available to them, and plaintiffs could once again contend an employer has a duty to ensure all required meal periods are taken and to document that all required meal periods are taken.
After the California Supreme Court granted review of Brinker, the Court of Appeal issued seven additional decisions holding an employer is required to make required meal periods available but is not required to ensure that employees take all required meal periods made available to them. See Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brookler v. Radio Shack Corp., Hernandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, Lamps Plus Overtime Cases, and Santos v. Vitas Healthcare. However, the California Supreme Court promptly granted review of each of those seven decisions, too, and, like Brinker, those seven decisions can no longer be cited as authority that an employer is not required to ensure that employees take all required meal periods made available to them.
This state of affairs left employers, employees, and courts tasked with resolving disputes over whether an employer has or has not complied with its obligations to "provide" required meal periods in the dark about what the law requires and has complicated the handling of the innumerable class action wage and hour lawsuits brought against California employers.
On November 8, 2011, over three years after granting review, the California Supreme Court conducted the long awaited oral argument.
In an unusual turn of events, on December 2, 2011, the court granted the request of the California Employment Law Council to submit an additional post-hearing amicus curiae or "friend of the court" brief addressing the issue of "rolling" meal breaks, which was raised during the November 8, 2011 oral argument. The issue concerns when during the workday employers must "provide" the first meal period and whether, and if so, when during the workday employers must "provide" a second meal period. It has been widely believed that an employer is required to "provide" a second meal period only when a non-exempt employee works more than 10 hours in a workday and only after the tenth hour of work. However, on account of language in the Industrial Welfare Commission Wage Orders stating "[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes," the court is now considering whether an employee who takes a meal period relatively early in his or her workday is entitled to a second meal period if an employee works 5 hours after taking an "early" meal period, even if the employee's workday does not exceed 10 hours.On December 14, 2011, the California Supreme Court issued an order permitting the parties to the case to file no later than January 13, 2012, answers to the additional post-hearing amicus curiae brief submitted by the California Employment Law Council and permitting replies to any such answers to be filed no later than January 13, 2012. In that same order, the California Supreme Court vacating "submission of the cause" and stating the case will be deemed resubmitted on January 13, 2012. By that order, the court effectively extended the 90 day deadline for the court to issue its decision in the case from February 6, 2011 (i.e., 90 days after the close of the November 8, 2011 oral argument) to April 11, 2012. We are continuing to monitor this important case, and will report on further developments as information becomes available.
- Partner
Christopher Andre is a seasoned civil litigator who focuses his practice on civil litigation and advising and representing employers. Mr. Andre is an editor of and frequent contributor to the firm’s Labor and Employment Law ...
- Partner
Scott Dauscher is Chair of the firm’s Commercial and Complex Litigation Practice Group. He also serves as Chair of the firm’s Class Action Defense Group, managing AALRR’s extensive class action practice and its team of ...
Other AALRR Blogs
Recent Posts
- President Biden’s Administration Halts Department of Labor’s Final Rule for Worker Classification
- Rotational Employees Can Have Their “On” And “Off” Weeks Counted Against Their FMLA Leave Entitlement
- Ninth Circuit Issues Important Decision on Per Diem Pay
- Ninth Circuit Upholds Victory for Trucking Industry: California Meal and Rest Break Rules Preempted by Federal Law as to Commercial Drivers
- They Say Never Discuss Politics In Polite Company, But How Can Employers Handle Impolitic Off-Duty Conduct?
- DOL Permits Back-of-the-Restaurant Staff to Share in Servers’ Tips
- Can California Employers Be Liable For Failure To Prevent Something That Never Happened?
- Employer’s Delay is Fatal to Enforcement of Arbitration Agreement
- California Employers: The federal Department Of Labor’s Final Rule For Worker Classifications Does Not Eliminate The Requirements Under California’s ABC Test
- Court Holds California Law Applies to Offshore Workers on Oil Platforms
Popular Categories
- (43)
- (40)
- (135)
- (22)
- (6)
- (6)
- (31)
- (26)
- (22)
- (14)
- (5)
- (6)
- (4)
- (3)
- (3)
- (14)
- (9)
- (2)
- (2)
- (1)
- (3)
- (1)
- (3)
- (1)
- (1)
- (2)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
Contributors
- Christopher S. Andre
- Cindy Strom Arellano
- Sarkis A. Atoyan
- Alicia A. Belock
- Eddy R. Beltran
- Rex Darrell Berry
- William M. Betley
- Brigham M. Cheney
- Michele L. Collender
- Kevin R. Dale
- Scott K. Dauscher
- Alexandria M. Davidson
- William A. Diedrich
- Alfonso Estrada
- Lauren D. Fierro
- Paul S. Fleck
- Robert Fried
- L. Brent Garrett
- Carol A. Gefis
- Kieran D. Hartley
- Amber S. Healy
- Jonathan Judge
- David Kang
- Nate J. Kowalski
- Joshua N. Lange
- Catherine M. Lee
- Thomas A. Lenz
- David M. Lester
- Martin S. Li
- Mia A. Lomedico
- Jorge J. Luna
- Michael J. Morphew
- Ronald W. Novotny
- Michael J. O'Connor, Jr.
- Aaron V. O'Donnell
- Shawn M. Ogle
- Sharon J. Ormond
- Justin R. Peters
- Chesley D. Quaide
- Todd M. Robbins
- Irma Rodríguez Moisa
- Casandra P. Secord
- Jon M. Setoguchi
- Lauren B. Shelby
- Ann K. Smith
- Amber M. Solano
- Susana P. Solano
- Ethan G. Solove
- Susan M. Steward
- April Szabo
- Jay G. Trinnaman
- Jonathan S. Vick
- Robert L. Wenzel
- Brian M. Wheeler
- Glen A. Williams
- Kimberley A. Worley
- Lisa C. Zaradich
Archives
2021
2020
- December 2020
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- January 2020
2019
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
2018
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- March 2018
- February 2018
- January 2018
2017
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- June 2017
- May 2017
- March 2017
- February 2017
2016
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
2015
- December 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- February 2014
- January 2014
2013
- October 2013
- September 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
2011
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011