Provide or Ensure? An Update on Brinker

Winter 2011Newsletters California Update

On November 8, the California Supreme Court heard oral arguments in the case of Brinker v. Superior Court (Hornbaum). In this long-awaited case, the plaintiffs have argued that an employer must affirmatively ensure that their employees take the required meal periods, while defendants claim that the employer’s duty is only to provide the employee the opportunity to take the meal period free of any control by the employer. Much of the case rests on the court’s interpretation of the Labor Code, which indicates that the employer is to “provide” a meal period.

During oral arguments, the plaintiff argued that under the “ensure” standard employers would be justified in disciplining or even firing employees who did not follow instructions on taking their meal breaks. The Court, however, seemed hesitant to adopt a standard that could lead to this outcome, and appeared to favor a standard that provided flexibility, leaving the choice up to the employee as to whether or when they would take their meal break. The most insightful comment from the bench on this issue pointed out that, if the hallmark of a meal period is the employer suspending control over the employee, then the employee should be able to choose for him or herself whether to take the meal period at the designated time. Overall, the tenor of the questions suggested that the Court is in favor of a standard that leaves the employees some flexibility in deciding whether to take their meal breaks.

Whatever the outcome, the Brinker case will be one of the most important wage and hour cases in California’s recent history. The court should issue a decision by February 6, 2012.

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