The Supreme Court today declined to answer state employment law questions posed by the Ninth Circuit in Cole v. CRST Van Expedited. Labor issues are a regular subject of Ninth Circuit queries. (E.g., here, here, and here.)
The Cole questions, which the Ninth Circuit will now need to resolve on its own, were:
1. Does the absence of a formal policy regarding meal and rest breaks violate California law?
2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?
The denial is very unusual. The Supreme Court almost always agrees to help out the Ninth Circuit when asked. Before today, the court had granted the last eight requests to answer state law questions. There were two denials the middle of last year, although one of them wasn’t a real denial. (Here and here.) Before that, the court had granted 13 requests in a row and 21 of the previous 22, and the one denial during that time also wasn’t really a denial.
Today’s denial might be due to the Ninth Circuit’s weak showing of a conflict in the current case law regarding one of its questions. To show a split of authority, the Ninth Circuit cited the holding of an unpublished Court of Appeal opinion, which doesn’t bind any California courts. With no conflict in the published case law, the Supreme Court might believe there is no lack of “controlling precedent,” which rule 8.548(a)(2) states as a prerequisite to taking a case from another jurisdiction’s court.
Cole is the case where one of the Ninth Circuit judges made a somewhat flippant remark about the Supreme Court’s pro-employee reputation in labor cases. During oral argument, the judge commented, “plaintiffs who lose in the district court are just dying to get to the California Supreme Court and the defendants who lose in the district court don’t want to get anywhere near the California Supreme Court.”