The Return of the Pro-Employer Brinker Opinion
Federal Minimum Wage Increases to $6.55

Schwarzenegger Press Release Applauds Brinker

Predictably, the governor was pleased with the Brinker decision. He was so pleased that he issued a press release. It's very unusual for the governor to issue a press release discussing an opinion of the Court of Appeal, but then again, protecting employers from wage and hour cases is one of the governor's highest priorities. Of more interest to us is how the governor issuing such a press release further demonstrates the merit of a petition for review under CCRC Rule 8.500(b)(1):

(b)   Grounds for review The Supreme Court may order review of a Court of Appeal decision:

(1)   When necessary to secure uniformity of decision or to settle an important question of law;

Here's what the governor had to say:

State of California - Office of the Governor, Arnold Schwarzenegger


07/22/2008   GAAS:569:08   FOR IMMEDIATE RELEASE

Following the Fourth District Court of Appeal's decision in Brinker Restaurant Corporation v. Superior Court of San Diego, Governor Arnold Schwarzenegger issued the following statement:

"We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today's decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently."

In today's decision, the court held that employers must make meal periods available to employees and cannot impede, discourage or dissuade employees from taking meal periods. However, once made available, the employer is not obligated to police the employee's use of that time by ensuring that the employee takes the meal period.



Ugh, let's at least be intellectually honest about this. I get the point that the opinion's holdings as they pertain to the class action as a tool in wage claims generally deserve scrutiny. Heck, I agree with your earlier posting where those aspects of the opinion are concerned.

But, when it comes to the meat of the opinion - the substance of the "provide" vs. "ensure" requirement when it comes to meal and rest periods, which is what the Governor's statement addresses, although the Governor is correct to say that there was conflict, the conflict was between DLSE opinion letters with no support in either text or legislative history and the analysis used by the Court. Why lobby the Supreme Court to resolve a conflict which doesn't exist? Why not push the Legislature or IWC to hold hearings and actually generate a, gasp, clear rule which everyone can then follow? Or put another way, on the provide vs. ensure requirement, is there not uniformity of decision now?

Michael J. Walsh

To get to the intellectual honesty, all you have to do is look at the federal cases, or read the entirety of Rule 8.500(b)(1), where it ends with "or to settle an important question of law". The governor's press release shows that this is an important question of law that reaches from minimum wage worker all the way to the governor's mansion. Brinker does not settle the issue raised in the opinion, and a substantial number of meal period class actions are removed to federal court, where judges are not bound by decisions of appellate courts. Only the Supreme Court binds them, and they are all over the board even on the "ensure" v. "provide" issue. That is more than enough conflict to justify review.


I appreciate the response. And it's a good point, CAFA has some ugly consequences I guess. But to my main point, it's better for the Supreme Court to take a case to straighten out those pesky federal courts than to push the Legislature or IWC to actually lift a finger? Unlike the Sav-On issues raised, where I agree with you completely, the provide/ensure dispute could be settled in a sentence. No, let's spend the typically lengthy multi-year period for Supreme Court review instead. And let's let tons of these claims sit in limbo until then.

And what's the conflict? Was the court incorrect to say that Perez didn't reach the same issue as Brinker and instead centered around whether there was a dispute of fact over whether the employer even provided the breaks under even what is now the Brinker standard? And if it was right, is there another federal case in conflict? The other two I know about aren't. And it will take a gutsy federal judge to say "I know there is only one State case directly on point but I think the California Supreme Court would decide differently and by so deciding, I'll leave the litigants before me with almost no chance to gain meaningful review of that decision." I'm sure it's happened but I'd be more swayed by the conflict argument if it happens going forward.

Still, at bottom, I just think it's crazy that this dispute can continue on and on like this - isn't this what the IWC is for?


So how will the Governor and others feel when timecards are being altertered to cover the actions of employers who say breaks and meal periods were offered when they never were?


Timecards would never reflect whether the breaks were offered, altered or not. Only whether they were taken.

I'm not trying to carry the water for either side. The appeal of the anti-Brinker position is this - it's easy, just look at the timecards. If they reflect the break, you're golden, if not, you're in trouble. The appeal of Brinker is that a lot of employees like flexibility and hate filling in their timecards with down-to-the-minute precision for fear of being fired (which I am reading anecdotal reports of happening, maybe anecdotal is really apocryphal). Inquiry instead into whether employer can prove that it/he/she has a policy of providing breaks and that it's not a sham.


The legislature can do nothing about it. They would undoubtedly support a bill that agrees with the plaintiffs' position in Brinker, and Arnold would just as undoubtedly veto it.

Now he's trying to cut all the state workers to minimum wage. Maybe he hates working people, because he thinks they are stupid for watching all his movies, and because they don't contribute to his campaign.

Now he's trying to cut all the state workers to minimum wage. Maybe he hates working people, because he thinks they are stupid for watching all his movies, and because they don't contribute to his campaign.

Now he's trying to cut all the state workers to minimum wage. Maybe he hates working people, because he thinks they are stupid for watching all his movies, and because they don't contribute to his campaign.


With the ink still wet on Arnie's press release, the DLSE wasted no time in updating its Policy & Enforcement Manual to reflect Brinker 2 as the "law of the land."

See Items 45.2X


"Moreover, plaintiffs' interpretation of section 512(a) is inconsistent with the language allowing employees to waive their meal breaks for shifts of less than five hours."

I really don't understand what the Brinker court is even trying to say here. I fear that the court is laboring under layers of confusion. But let's start with the top layer: Does anybody know what language says that an E may waive the MP if the shift is less than 5 hours? Because that's certainly not what I read in, say, LC 512(a). LC 512(a) says that the E does not even get a MP to waive in that situation.


The more I think about it, the more I think that the court's conceptual difficulty resides in the "ensure v. provide" framework. Neither "ensure" nor "provide" are words found in the substantive (as opposed to remedial) provisions of the WO's.

The word that we should be focusing on is "employ," which means "to engage, suffer, or permit to work." Once you do that, things are real simple:
The R may not engage an E to work a shift of more than six hours without a MP.
The R may not permit an E to work a shift of more than six hours without a MP.
The R may not even suffer an E to work a shift of more than six hours without a MP.

Would it have been possible for the IWC to have said this any more clearly, forcefully, and unambiguously?

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