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. Since that time, the California Supreme Court has granted review thereby rendering unciteable six 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, Tien v. Tenet Healthcare, and, most recently, Lamps Plus Overtime Cases.
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 reported further that some commentators believe Justice Cantil-Sakauye will not schedule Brinker for oral argument until after Governor Jerry Brown appoints replacement for Justice 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.
Yesterday, Governor Brown may have brought the court one step closer to deciding the long pending Brinker meal period decision by nominating UC Berkeley law professor Goodwin Liu to fill the seat vacated by former Justice Moreno. Although Mr. Liu's nomination to the United States Ninth Circuit Court of Appeals by President Barrack Obama was effectively blocked by Senate Republicans who criticized Mr. Liu on various grounds, it is generally expected that his nomination to the California Supreme Court will be swiftly confirmed by the California Commission on Judicial Appointments, consisting of three members: California Supreme Court Presiding Justice Tani Cantil-Sakauye (appointed by former Governor Arnold Schwarzenegger), California Attorney General Kamala Harris (a Democrat elected in 2010 after serving as the District Attorney for the City and County of San Francisco), and Senior Presiding Justice of the California Court of Appeal Joan Dempsey Klein (appointed by Governor Brown during his first term as Governor of California).
Although it remains difficult to predict when the California Supreme Court will decide Brinker and difficult to predict how the California Supreme Court will rule on the case, we think Governor Brown's appointment of Mr. Liu increases the likelihood the Supreme Court will decide the case adversely to California employers.
