MAPC Publishes “California Supreme Court Agrees to Review Yet Another Brinker-Related Opinion On Meal and Rest Periods”

In 2008, the Fourth District Court of Appeal (San Diego) found that the onus on employers to ensure meal and rest periods for employees was not as burdensome as a “strict liability” liability standard for missed break periods.  Thus, in Brinker Restaurant Corp. v. Superior Court, 165 Cal.App.4th 25, it was found that employers must only reasonably provide meal and rest periods, they are not obligated to ensure that employees take those periods.  This ruling took some of the teeth out of wage-and-hour claims where employees had successfully argued that the employee’s conscious decision to forego a meal or rest period unbeknownst to the employer could form the basis for a meal-and-rest period violation by the employer.  Brinker was accepted for appeal in 2008 to the California Supreme Court, has been fully briefed, but remains undecided.

A number of decisions post-Brinker came before various Court of Appeals in 2008, 2009 and 2010, all of which adopted the employer-friendly Brinker approach to addressing employer liability for missed meal periods.  As with the Brinker decision, these decisions found that employers must only reasonably provide meal and rest periods, not ensure that they are taken.  As Brinker has been pending, these other opinions have been decertified for publication pending the outcome of Brinker.

In May of this year, the Second District Court of Appeal (Los Angeles) decided another meal and rest period case in conformity with Brinker.  In denying class certification for Lamps Plus employees, the Court of Appeal in In re Lamps Plus Overtime Cases, 195 Cal.App.4th 389, found that employers need not ensure that employees take meal and rest periods.  Like other Brinker-related cases, the Second District’s Lamps Plus decision lasted only two months as good law before the Supreme Court decertified it for publication on July 20, 2011, pending the outcome of Brinker.

A decision on Brinker is eagerly anticipated by the Employment Bar.  If the Brinker rule stands, then an avenue for damages and a powerful negotiating tool for plaintiffs in wage-and-hour cases will be crippled.  If it is overturned, employers will complain that a reversion to the purported strict liability standard for missed meal and rest periods is more evidence of California’s business-unfriendly climate.