Now that the California Supreme Court has accepted review of Brinker Restaurant Corporation v. Superior Court (Hohnbaum), Supreme Court No. D049331 (2008), California employers are hopeful that the Supreme Court will affirm the well-reasoned decision of the Court of Appeal explaining an employer’s obligation to provide meal and break periods, as opposed to ensure that the meal and break periods are actually taken. Opening briefs in Brinker are due to be filed with the Supreme Court on January 20, 2009.
Immediately following the Court of Appeal’s decision in Brinker, the California Labor Commissioner issued a memorandum to all Department of Labor Standards Enforcement staff to follow the rulings in Brinker. When the Supreme Court granted review, the Labor Commissioner withdrew her memorandum, but directed DLSE staff to follow the numerous federal court decisions that concluded that, under California law, it is an employer’s obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. For more information on the Labor Commissioner’s memorandum and citations to the federal cases addressing meal and break periods, see the Littler Mendelson ASAP, California Supreme Court Grants Review to Brinker – Employers Await Answers on Meal Period Obligation (October 2008).
The California Labor Federation, which represents more than 1,200 labor unions in California, protested loudly that the Fourth District Court of Appeal’s decision in Brinker merely created a split with the Third District’s earlier decision in Cicairos v. Summit Logistics Inc. (2006) 133 Cal.App.4th 949. In Cicairos, the court quoted a 2002 DLSE Opinion Letter that employers have “an affirmative duty to ensure that workers are actually relieved on duty.” The Supreme Court declined to grant review in Cicairos, as well as a request to have the opinion depublished. The defense bar and, fortunately, the California Labor Commissioner, read Cicairos as in accord with Brinker that an employer need only provide meal and rest breaks but, on unique facts, found that Summit Logistics failed to make meal and break periods available to its delivery drivers.
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