November 10, 2011
As expected, the California Supreme Court held oral argument on November 8, 2011 in Brinker Restaurant Corp. v. Superior Court. In this high profile case, the Court is set to address questions concerning the interpretation of California statutes and regulations governing meal and rest breaks. As we anticipated, the California Channel broadcast the Brinker oral argument live, and the argument remains available for viewing on its website here and here (the argument is split among these two links).
Brinker raises numerous issues concerning class certification and the scope of California’s meal and rest break laws. Among the most prominent issues the parties have briefed in Brinker is whether, as plaintiffs maintain, employers must ensure employees take their meal breaks. While it is often difficult to discern how the Court will rule based on the questions justices pose at oral argument, my own take on the Brinker argument is that a majority of the Court—perhaps even all of the justices—is likely to hold that employers need not ensure their employees take their meal breaks. It was less clear, however, how the justices might rule on some of the other wage and hour issues raised by the case. For example, the justices appeared divided over the question of whether employers must, pursuant to wage order regulations, provide a second meal break in a single work day if five hours have passed since the last meal break. Although Justice Kennard did not seem to ask questions relating to this issue at the argument, it appeared, based on the other justices’ questions, that any member of the Court who hopes to secure a majority on this particular issue will need to persuade Justice Kennard to concur in his or her decision on this point.
Justice Goodwin Liu, the Court’s newest member, posed articulate questions to both sides during the argument, as he has in prior arguments. This was especially impressive considering that Justice Liu was sworn in only a short time ago and may not have had much time to review and digest the host of legal briefs—addressing numerous complicated wage and hour issues—that have been filed in Brinker since the Supreme Court granted review in October 2008. The fact Justice Liu hit the ground running on the complex questions posed by Brinker suggests he may not hesitate to play an active role in future oral arguments.