The California Supreme Court has granted review of the Brinker case, in which a State Appellate Court had ruled, in part, that an employer need only provide its employees with the opportunity to take meal periods and rest periods in accordance with California law, not actually ensure that such breaks are taken. Because of the grant of review, the Appellate Court’s decision in Brinker has now been depublished and is no longer valid.
A similar ruling by the Court of Appeal, for the Second Appellate District, in the case of Brinkley v. Public Storage, Inc., B200513, just filed on October 28, 2008, will likely be depublished as well, pending a final ruling by the California Supreme Court in the Brinker case.
Employers in the restaurant, hotel and catering services industries will be especially interested in the Supreme Court’s future ruling in Brinker, in which the Court is expected to determine whether employers will have the flexibility to offer early meal periods and rest periods at off-peak hours. The Court’s decision on this issue will dictate whether these employers may schedule employee break periods so that they do not interfere with customer service at these establishments.
The California Supreme Court should also address one of the ultimate issues in the Brinker case, whether the California IWC Wage Orders and the California Labor Code require an employer to guarantee that its employees actually take their meal period and rest periods, or must the employer merely offer the employees the opportunity to do so. Since an employer is currently liable for one or more hours of penalty pay for failure to provide such breaks to employees under the Labor Code, and since such financial exposure can be substantial, the Court’s ruling will have a direct, financial impact on all California employers.
Unfortunately, it is likely that the California Supreme Court will not issue its decision in Brinker for at least a year or more. Until then, an employer must ensure that it develops and implements a defensible meal period-rest period policy that helps minimize financial exposure to employee wage claims based on missed meal and rest periods. I encourage employers to contact my office for further guidance and assistance.