California Labor &
Employment Law Blog
Nov 8, 2011

Update on This Morning’s Oral Argument in Brinker

Topics: Wage & Hour Issues

Earlier today, I watched the Brinker v. Superior Court oral argument broadcast live from the California Supreme Court on television.  Unfortunately, I missed about 20% of the arguments because the TV station broadcasting the event, CalChannel, was having technical difficulties.  They have not determined what the technical difficulties were, but if I had to guess I would think that is very possible that a key employee on the broadcast team had his required meal period fall right in the middle of the broadcast and had to leave for 30 minutes.

I think it is a bit crazy to try to predict what the Supreme Court is going to do based on questions and statements made at oral argument.  My ability to predict such things is about as good as my ability to hit a free throw in a crowded gym with the game on the line.  If you have never seen me play basketball, that means somewhere around 55 to 60%.  Therefore, this blog entry will contain no predictions.  However, I can comment on some of the what I saw and the key points that were highlighted:

First, let me address what most believe to be the most important issues in the case:  What does "provide" mean?

A number of the Justices seemed very hostile to the appellant attorney's argument that "provide" means to ensure that meal breaks are taken.  Justices Kennard, Liu, Corrigan and Baxter all appeared perplexed at this argument and challenged the position of the appellant's attorney with aggressive questioning on the issue.  I thought Justice Liu made a very salient point when he quieried:  If the wage orders and statutes are supposed to be intepreted in the manner most favorable to the employee, wouldn't it make the most sense to say that the employee is released of all control during the meal period and the statute is best interpreted to allow the employee complete freedom to do whatever he or she wants to do, including working through his or her meal period if the employee desired?  At least two other Justices seemed to wonder the same thing as Justice Liu based on their follow up questions.  In fact, when the appellant's attorney argued that the employer could still discipline the employee who does not take a meal period after being ordered to do so, at least two of the Justices questioned how this was an interpretation that was favorable to the employee.  One of the Justices also commented that the Court of Appeal decision holding that provide simply means to make available is not in isolation and seemed well supported by at least 9 other federal district court cases.

The other key substantive issue before the Court is the timing requirement of meal breaks.  Is a meal break required for every 5 hour period of work on a rolling basis, or is an employee who works more than 5 hours simply entitled to take a meal break at any time during his or her shift?  On this issue, the Justices who were active with questions seemed most harsh to Brinker's position on timing.  Justice Liu spent a lot of time with Brinker's attorney on this issue.  He seemed particularly adamant that the language in the wage order means that an employee cannot work a five hour period without a meal period and seems to require a rolling 5 hour intepretation.  He offered the example of when an employee works a 9 hour work shift from 9am to 6pm and takes his first meal period at 12 noon for 30 minutes, until 12:30pm.  Liu seemed taken aback when Brinker's attorney argued that a second meal period would not be required in that scenario.  Liu kept harping on the fact that the law says "every 5 hours" and the time period from 12:30 to 6pm was 5 and a half hours.  A number of other Justices who weighed in on this issue, including Chief Justice Cantil-Sakauye, seemed to feel the same way as Justice Liu, although they did not express their feelings as strongly as Liu did.

The third issue that was discussed focused on the viability of class actions for meal and rest break violations.  Unfortunately it was during this portion of the appellant's argument that the audio went out and this issue was not addressed at length by Brinker's attorney.  Thus, there is little I can offer on this particular issue.

The final issue discussed was whether the California Supreme Court's decision would be prospective only or retroactive.  Personally, I cannot understand how the decision would only be prospective.  This decision involves an interpretation of statutory and regulatory language.  Thus, it appears to me that any decision of the California Supreme Court would have to be an interpretation of existing law, which therefore must have retroactive implications.  Brinker's attorney also seemed surprised that this topic was broached by the Justices.

Let me emphasize that it would be foolish for any employer (or employee) to attempt make policy or practice decisions based upon the oral argument or any person's report or views of it (including mine).  This is particularly true here.  The matter is now submitted, which means that the Court is generally required to issue a decision within ninety (90) days.  Have patience for no more than three more months and we will soon have some guidance.  When we do, you can bet that we will report on it right away.

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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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