California Labor &
Employment Law Blog
Dec 9, 2011

Court Allows Post Oral Argument Briefing in Brinker

Topics: Court Decisions, Wage & Hour Issues

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. 

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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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