Labor & Employment Law Blog

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 October 4, 2011, nearly three years after the California Supreme Court granted review of Brinker, the California Supreme Court scheduled the case for oral argument tomorrow, November 8, 2011, beginning at 9:00 a.m.  

The oral argument will be broadcast live on The California Channel. We are hopeful that the oral argument will provide some insight into how the court might decide the issue.

While it remains difficult to predict how the California Supreme Court will decide the issue, particularly since the composition of the court has changed since the court granted review of the Brinker case in 2008, we do expect that the court's decision will at long last put to rest disputes over what an employer's obligation to "provide" required meal periods means.