California Supreme Court Hears Oral Argument In Key Meal/Rest Period Case

On Tuesday, November 8, 2011, the California Supreme Court heard oral argument in the long-awaited case of Brinker v. Superior Court (Sup. Ct. Case No. S166350). The case raised a variety of highly litigated and highly contested issues, including: (1) the scope of an employer's meal period obligations to employees; (2) the scope of an employer's rest period obligations to employees; and (3) whether a trial court must or may determine the elements of a plaintiff's claim before deciding whether the claim may proceed on a class-wide basis. While the oral argument briefly addressed issues (2) and (3), it is unsurprising that the bulk of argument pertained to question (1).

Based on the justices' questions, it appears that a majority of them are leaning towards the following holdings:

that employers are not obligated to ensure that employees take meal periods; however, employers have an affirmative obligation to make meal periods available to employees, though what it may take to meet that affirmative obligation is far from clear; Labor Code section 512, the statute entitling employees to meal periods, sets a floor for employees' entitlement to meal periods, and does not preclude the Wage Orders from providing more generous meal period entitlements; and Section 11 of Wage Order 5-2001 contemplates that meal periods must be made available after every 5 consecutive hours, unless the waiver under Section 11(a) applies (this is often referred to as the "rolling 5-hour obligation," and comparable language appears in nearly all of the other Wage Orders). Rex Heinke of Akin Gump Strauss Hauer & Feld LLP argued for Respondents Brinker Restaurant Corporation, et al. ("Brinker"). Kimberly Kralowec of The Kralowec Law Group and Michael Rubin of Altshuler Berzon, LLP argued for Petitioner and Real Party in Interest Hohnbaum, et al. ("Hohnbaum"). Summary of Hohnbaum Argument

Argument by Kralowec

Almost immediately after Hohnbaum's argument began, Justice Kennard asked whether it is Hohnbaum's position that the different language regarding meal periods in Section 512 and Wage Order 5 could be harmonized and, if they cannot be harmonized, which should control. Hohnbaum responded that the two provisions could be harmonized but, if the Court were to conclude otherwise, Section 512 would not prevent the Wage Order from providing greater protections to employees. In response to follow-up questions from Justices Baxter and Chin, Hohnbaum argued that Labor Code section 226.7 was the most recently-enacted legislation addressing meal periods, and it "specifically incorporated" the meal period standards from the IWC Wage Orders, codifying those meal period standards. Justice Kennard expressed some skepticism for that position, to which Hohnbaum responded that the legislature used the same word "provide" with respect to both meal periods and rest breaks, which clearly have different standards. This is evidence of the legislature's intention to use the word "provide" as shorthand to codify the meal period and rest break standards from the Wage Orders. Chief Justice Cantil-Sakauye then asked whether IWC v. Superior Court (1980) 27 Cal.3d 690 (holding in part that the IWC could adopt more restrictive provisions than provided for in the Labor Code) would affect the Court's interpretation of Section 512. Hohnbaum responded (unsurprisingly) that IWC v. Superior Court is consistent with the principle that the Labor Code provides a "floor" for employee protections, but the IWC may adopt more protective standards. Justices Chin, Liu, Kennard, Baxter, and Corrigan then challenged Hohnbaum directly on the "ensure" standard advocated by Petitioner. Their questions focused on whether an employer is really required to discipline and pay an employee who willfully works through a meal period of his or her own free will, just because he or she wants to. They also questioned the...