In October, we circulated an update on a favorable California Court of Appeal decision regarding employers’ duties to provide employees with meal breaks. In Brinkley v. Public Storage, Inc., 167 Cal. App. 4th 1278 (2008), the Court of Appeal held that (1) employers must make meal periods available, but need not ensure that they are actually taken, and (2) meal periods need not be provided within the first five hours of work. The Court also held that, in order to establish a claim for violation of Labor Code Section 226 regarding pay stubs, “a plaintiff must actually suffer injury to recover damages or statutory penalties.”
Not surprisingly, the plaintiff in Brinkley filed a petition for review. On January 14, 2009, the California Supreme Court granted the petition. As we have previously reported, the California Supreme Court is also reviewing a similar California Court of Appeal decision, Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008). In Brinker, the Court of Appeal held, among other things, that employers need only “provide meal breaks” to employees, not “ensure” that the meal breaks are actually taken. The court further held that, because meal breaks need only be “made available” and not “ensured,” individual issues predominated, and the meal break claims (as well as related rest break and off-the-clock claims) were not amenable to class treatment.
While the Supreme Court has not yet ruled on the underlying issues, the decisions may no longer be cited or otherwise relied upon in court findings. We will continue to monitor Brinkley, Brinker and other cases in this area of the law for further developments.
Keesal, Young & Logan Employment Group
