California Labor &
Employment Law Blog
Oct. 22 2008

California Supreme Court Grants Review of Brinker

Topics: Court Decisions, Wage & Hour Issues

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.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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