Labor & Employment Law Blog

As expected, last Wednesday, the Commission on Judicial Appointments unanimously confirmed Mr. Liu as a Justice to fill the seat vacated by former Justice Carlos R. Moreno, who stepped down to take a position in private practice.  

Now that the court is once again fully-staffed with seven members, it remains to be seen when the court will schedule for oral argument and ultimately decide the long pending decision in Brinker Restaurant Corporation v. Superior Court.  

As we previously reported here,the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

On October 22, 2008, the California Supreme Court granted review of the Court of Appeal's decision in Brinker to decide "the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers." Nearly three years later, the case still has not been scheduled for oral argument, and it remains to be seen when the California Supreme Court will decide the case.  Since that time, the California Supreme Court has granted review thereby rendering uncitable six Court of Appeal decisions holding as in Brinker that an employer's obligation to "provide" meal periods to non-exempt employees is to make the required meal periods available and not to ensure that non-exempt employees take the meal periods provided to them: Brinkley v. Public Storage, Faulkinbury v. Boyd & Associates, Brooker v. Radioshack Corporation, Hernandez v. Chipotle Mexican Grill, Tien v. Tenet Healthcare, and, most recently, Lamps Plus Overtime Cases.

Although it remains difficult to predict when the California Supreme Court will decide Brinker and difficult to predict how the California Supreme Court will rule on the case, we think Governor Brown's appointment of Mr. Liu increases the likelihood the Supreme Court will decide the case adversely to California employers.