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State High Court Hears Meal/Rest Case Arguments

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What Does ‘Providing’ Mean?

The unresolved issue before the court is the meaning of the word "providing." Must the employer ensure that the employee actually takes the meal period? Or does the employer meet its obligation if the employer makes the meal period available to the employee?

Another important issue before the court is the timing of meal periods and also rest breaks. Before the court is the question of whether the Labor Code requires that the meal period be provided after five consecutive hours of work on a rolling basis.

Does the statute prohibit the practice of requiring an employee to take an early or late lunch? Is an employee entitled to take a meal break at any time during the shift?

Questioning Recap

Following are some highlights of the questioning.

It should be noted that the direction of the questions doesn’t always lead toward the ultimate decision of the court.

1. The justices started their questioning mere moments into the plaintiff’s argument. The first line of questioning related to the legislative history regarding meal periods and rest breaks and whether the Wage Orders issued by the Industrial Welfare Commission prevail over the statutory language of the Labor Code.

2. Justice Joyce L. Kennard immediately focused on the key dispute: Must employers merely make meal periods available to employees? Or do employers have to ensure that they are taken? Justice Kennard appeared to view the plain language of the statute, and the use of the word "providing" in that statute, as critical to the resolution of the case.

In response, plaintiff’s counsel, Kimberly Kralowec, argued that the Wage Order history indicates the standard is that employers should ensure that meal periods are taken.

3. Justice Kennard wanted to know how employers can ensure that hundreds of workers take meal periods. "Let’s assume one has hundreds or even thousands of employees," said Justice Kennard.

"How is an employer going to ensure each of these hundreds of workers or thousands of workers is actually taking a meal break? Why not give some flexibility?"

Allowing employers "flexibility" was a common theme. Justice Goodwin Liu asked whether it would not be the most protective to workers to leave the decision to the worker to take the meal break once it is made available.

Justice Liu asked, "Isn’t the most worker-friendly interpretation of this is that the worker should be able to do whatever he or she wants during a meal period?"

4. The justices peppered plaintiff’s attorneys with questions about how managers could force employees to take the meal period and if they could fire employees who refused to do so. Some justices appeared hesitant to adopt an argument that could put an employer in the position of firing an employee who chooses to work through his or her lunch.

5. The justices also questioned plaintiff’s counsel regarding the timing of rest breaks and whether the case was appropriate for class action certification.

6. Brinker’s counsel, Rex Heinke, also opened his argument with a discussion of the statutory history and the wage orders. Heinke told the court, "We believe the employer has an obligation to make meal periods available to employees. But nowhere in Wage Orders or the statute does it say the employer must force the employee to take 30 minutes."

7. The justices questioned Brinker’s counsel about the timing of the meal break. Justice Liu’s questioning was particularly focused on the issue of whether the employer is obligated to make the meal period available for every five consecutive hours of work and not at an earlier or later time in the shift.

Brinker’s counsel argued that nothing in the statutory language suggests that meal periods must be provided at a certain time. Brinker’s counsel argued that employers should have flexibility over when meal periods are taken and that some employees, for instance wait staff, would rather work during a busy stretch than take a meal period, in order to receive better tips.

After nearly an hour of argument, the state high court took the case under submission. The court has 90 days to issue a decision. This means that a ruling can be expected on or before February 6, 2012.

Follow-Up Webinar

The CalChamber is urging interested businesses to sign up to receive email notification of the court’s decision, plus advance notice of CalChamber’s follow-up webinar, "Meal & Rest Breaks: What Does the Brinker Decision Mean for Your Workplace?" by December 15. The signup form is available at

For the Brinker webinar, Susan Kemp, CalChamber senior employment law counsel, and Erika Frank, vice president and general counsel and head of the CalChamber Legal Affairs Department, will analyze the Brinker decision and discuss its impact on current meal and rest break requirements. Seminar attendees will also learn best practices and tips on complying with the court’s ruling.

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