Court Allows Post Oral Argument Briefing in Brinker
In a relatively rare circumstance, the California Supreme Court has allowed the California Employment Law Council to file a post oral argument amicus brief. The supplemental brief was filed on December 2 and addresses the limited issue of whether the Court's ruling on the "rolling 5 hour" issue will be retroactive or prospective only. Many who watched the oral argument gleaned that at least some of the Justices surprisingly seemed to be leaning toward a finding that California law requires a meal break to be provided on a rolling basis for every 5 consecutive hours worked. (This is a different and separate issue than the main issue being decided by the Court--what it means to "provide" a meal break.) If that is in fact the ruling of the Court, it would mean that an employee who takes an early lunch and then works five more hours would be entitled to another meal break. Most lawyers, employers, and courts have not interpreted the law in this fashion. Thus, if the Court rules in this manner and the ruling is retroactive, it is sure to expose California employers to a new onslaught of lawsuits on this meal break issue as well as potentially huge liability. The California Employment Law Council's amicus brief argues against such a result and suggests that any such ruling should operate prospectively only. The parties to the case have 30 days (from December 2) to file responsive briefs. Given the allowance of supplemental briefing, it is unlikely a decision will be rendered in Brinker much earlier than the February deadline.