The issue of whether an employer's obligation to "provide" to non-exempt employees unpaid, duty free meal periods of at least 30 minutes means the employer must ensure that non-exempt employees actually take such meal periods or means the employer must merely make the meal periods available has been pending before the California Supreme Court since August 2008 when the court granted review of the Court of Appeal's decision in Brinker Restaurant Corp. v. Superior Court holding that an employer satisfies its duty to "provide" required meal periods by making required meal periods available to non-exempt employees. On December 4, 2008, the Court also granted review of the Court of Appeal's decision in Brinkley v. Public Storage, which decided the issue the same way as the Brinker court.
The California Supreme Court will not conduct any additional oral arguments this summer. Therefore, September is the earliest that Brinker could be placed on the Court's oral argument calendar. Assuming oral argument would then take place in November 2010, at the earliest, a decision by the Court is not likely to be issued until February 2011, at the earliest.
