California Supreme Court Grants Review of Brinker
Today the California Supreme Court granted Plaintiff Adam Hohnbaum's petition for review of the Court of Appeal's decision in Brinker Restaurant Corp. v. Superior Court (Hohnbaum). We have followed the developments in this case dealing with the dispute on what it means to "provide" employees with meal and rest breaks. The Court of Appeal in Brinker had resolved this issue favorably for employers, reversing the trial court's class certification order (which included meal and rest break claims and off-the-clock claims), concluding that, among other things, "while employers cannot impede, discourage or dissuade employees from taking meal (and rest) periods, they need only provide, not ensure, meal (and rest) periods are taken."
With the Brinker case now pending review by the Supreme Court, the decision by the Court of Appeal is no longer considered citable or binding on California courts. However, the federal district court decisions addressing the same issue, two of which were cited favorably in the Brinker decision itself, remain good law that may be cited as persuasive authorities, though the federal decisions are not binding on state courts. The federal district court cases include White v. Starbucks Corp., Brown v. Federal Express Corp., and Kenny v. Supercuts, Inc., each of which were discussed in prior blog entries. Also, as discussed in our July 29, 2008 blog posting, the DLSE issued a memo dated July 25, 2008 directing its staff to follow the Brinker holding for all matters pending with the DLSE. It remains to be seen whether the DLSE will adjust its position with Brinker pending review by the Supreme Court.
We will continue to monitor and post any further developments on this important issue, including any further information concerning the DLSE's position, as well as any proposed legislative action concerning the interpretation of "providing" breaks. If you have any questions regarding drafting policies or the implications of this decision for your business, please contact us directly.