As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.
On October 22, 2008, the California Supreme Court granted review of the Court of Appeal's decision in Brinker to decide "the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers." Over two years later, the case still has not been scheduled for oral argument, and it remains to be seen when the California Supreme Court will decide the case.
During a recent interview reported by the Daily Journal, the recently appointed Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, "declined to say when the court would hear argument, which is the only way to tell that a decision is forthcoming." The Daily Journal reports further that some commentators believe Justice Cantil-Sakauye will not schedule Brinker for oral argument until after Governor Jerry Brown appoints replacement for Judice Carlos R. Moreno, who stepped down to take a position in private practice in order to ensure that the deciding vote in Brinker is not made by a temporary justice.
Currently, the court appears to be more focused on a pending Proposition 8 case in which the court is called upon to decide whether proponents of the Proposition 8 same-sex marriage ban have standing to defend that ballot initiative in federal court. When asked about that case, Justice Cantil-Sakauye reiterated her decision to conduct oral argument of that case in early September, stating, '"It needs to get going. It needs to move forward.'"
Meanwhile, as we previously reported here, also, the California Supreme Court has repeatedly granted review of subsequent Court of Appeal decisions holding as in Brinker that an employer's obligation to "provide" meal periods to non-exempt employees is to make the required meal periods available and not to ensure that non-exempt employees take the meal periods provided to them: Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brooker v. Radioshack Corporation, Hermandez v. Chipotle Mexican Grill, and, most recently, on May 18, 2011, Tien v. Tenet Healthcare. As a result, those favorable decisions can no longer be cited to and are no longer binding precedent, and employers' obligations regarding meal periods for non-exempt employees remain uncertain as it is difficult to predict how the California Supreme Court will decide the issue.
