November 17, 2008
The California Supreme Court recently granted review of the Court of Appeal’s decision in Brinker Restaurant Corp. v. Superior Court of California, which held, among other things, that under California Labor Code § 512 employers must provide (i.e., make available) meal periods to employees, but do not have to ensure that meal periods are actually taken, provided that the employer does nothing to dissuade, discourage, or impede the taking of meal periods. The California Supreme Court’s grant of review has the effect that the Brinker case may not be cited or relied on by any court or a party in any other court action. The California Supreme Court will now decide the issues involved in the Brinker case.
A week after the Supreme Court granted review of Brinker, another California Court of Appeal in Brinkley v. Public Storage, Inc. also held that an employer’s obligation under California law is to make available meal periods, rather than to ensure that they are taken. The California Supreme Court may grant review of the Brinkley case as well, which would make it uncitable also if the Court does so.
However, in the meantime, there are numerous federal district court cases in California that have held that although the employers are required to provide meal periods, they are not obligated to ensure that their employees take meal periods and those court decisions can be cited. In addition, the California Division of Labor Standards Enforcement (DLSE) has issued a Memorandum to its staff which adopts the well-reasoned line of federal district court decisions (as well as of the Brinker and Brinkley decisions) and which states DLSE’s position as follows:
"Taken together, the language of the statute and the regulation, and the cases interpreting them demonstrates compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken."
The final interpretation on the obligations of California employers with respect to meal periods will come from the California Supreme Court, but we think that there are good reasons that the Supreme Court should agree with the Court of Appeal’s decisions in Brinker and in Brinkley, with their reasoning and that of numerous federal district courts in California, and the DLSE. We would be happy to assist you in developing your meal and rest period policies to comply with California law.
Gibson, Dunn & Crutcher’s Labor and Employment Practice Group is available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
Scott A. Kruse – Los Angeles (213-229-7970, [email protected])
William D. Claster – Orange County (949-451-3804, [email protected])
Christopher J. Martin – Palo Alto (650-849-5305, [email protected])
Pamela Hemminger – Los Angeles (213-229-7274, [email protected])
Julian W. Poon - Los Angeles (213-229-7758, [email protected])
Eugene Scalia – Practice Chair, Washington, DC (202-955-8206, [email protected])
© 2008 Gibson, Dunn & Crutcher LLP
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