In Cole v. CRST Van Expedited, the Ninth Circuit today asks the Supreme Court to decide these questions of California law:
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 Ninth Circuit says the first question relates to an issue the Supreme Court left undecided in Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 31, fn. 28. The second question concerns what the federal appellate court identifies as a conflict in the California Courts of Appeal about whether to follow a statement in Justice Kathryn Werdegar’s concurring opinion in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1053 (see here).
To prove that there’s a conflict in the current case law regarding the second question, the Ninth Circuit cites the holding of an unpublished Court of Appeal opinion. Although citing an unpublished opinion seems contrary to rule 8.1115(a) of the California Rules of Court, an unstated exception to the rule is that it’s considered appropriate to tell the Supreme Court about unpublished opinions demonstrating a division in the lower courts about a question of law.
At oral argument last November, the Ninth Circuit panel suggested it would be referring the case to the state high court. One of the judges seemed puzzled that the employees’ counsel was resisting the referral, telling the attorney that normally “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.”
The Supreme Court should let the Ninth Circuit know by the end of September — give or take — whether it will answer the questions. It probably will.
[August 2 update: the Supreme Court has docketed the case.]