Oct. 21, 2008 California Supreme Court Grants Review of Important Appellate Decision Regarding Meal And Rest Period Rules


Today the California Supreme Court agreed to review the recent appellate decision in Brinker Restaurant Corporation v. Superior Court (Hohnbaum).  The Brinker decision was discussed in an earlier E-Update on July 22, 2008.

By granting review of the decision, the Supreme Court will likely resolve long debated issues regarding meal and rest period rules important to California employers.  Most importantly, the Court will decide whether California law requires employers to affirmatively ensure that employees take their meal and rest breaks, or whether employers need only make meal and rest breaks "available" to employees.

In addition, the Court will likely determine how much flexibility employers have in allowing employees to take rest breaks that are not in the middle of each four hour work period.

Finally, the Court is expected to rule on whether employers are required to provide a meal period for every five consecutive hours worked (sometimes called the "rolling five-hour" theory), or whether employers need only make a meal period available to employees during the first five hours in a given work period.


In the appellate court, Brinker Restaurant Corporation argued that California law does not require employers to affirmatively ensure that employees take meal and rest breaks, but that an employer’s obligation is simply to not discourage, dissuade or impede employees from taking meal and rest breaks.  Brinker also argued that its practice of providing meal periods early on in a shift did not violate California law requiring meal periods for employees who work more than five hours per day.

The Court of Appeal agreed with Brinker, finding that employers need only make meal and rest breaks "available" to employees.  The Court relied heavily on the plain language of the Industrial Welfare Commission Wage Order and the California Labor Code provisions relating to meal and rest breaks.

After deciding these important legal issues, the appellate court concluded that the case was not appropriate for treatment as a class action because individual issues regarding why each employee missed a meal or rest break would predominate over common issues.

What This Means

The California Supreme Court’s resolution of these issues will have far-reaching ramifications for all California employers, particularly those already facing class action lawsuits alleging violations of California’s meal and rest break laws.

If the Supreme Court eventually affirms the appellate court’s decision, it will be a decisive step toward reducing employers’ exposure for meal and rest break class actions in California.  However, if the Supreme Court overturns the appellate court opinion in favor of a stricter standard, employers will likely remain exposed to significant wage and hour class action litigation.

California Supreme Court cases take, on average, 18 months to two years before an opinion is issued.  In the meantime, employers should remain diligent in requiring employees to take their full meal periods to prevent potential exposure to class litigation.

This case, and strategic options for meal and rest break compliance, will be discussed by Paul, Plevin’s attorneys at the firm’s 11th annual employment law update, "Workplace Law 2009" on October 30, 2008.  Information about the seminar and other upcoming briefings is provided below.

This E-Update was authored by Jeff Ames and Tim Keegan.  For more information, please contact Mr. Ames, Mr. Keegan or any Paul Plevin attorney at (619) 237-5200.

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