A petition for review has been filed in Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, the paystub violation and meal and rest break case that was published on October 28, 2008. We previously discussed Brinkley in posts that can be found here and here. We think that, even if there was no Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, the Brinkley opinion's break with Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 would make a compelling case for Supreme Court review. Among other things, Brinkley draws the conclusion that it would be "impossible" for employers with large work forces to enforce meal breaks; that there is no requirement for employers to schedule breaks within the first five hours; and that employers only have to make breaks available, applying a standard that equates the "provide" language in the meal period regulations with the "permit and authorize" language of the rest period regulations.
You can download Brinkley here in pdf or MS Word format. The Supreme Court has 60 days from December 4, 2008, to decide whether to grant or deny review. Absent an order granting themselves another 30 days, which is somewhat unlikely in this case, that means that a decision on the petition for review can be expected on or before January 28, 2009. We expect the Supreme Court to issue a "grant and hold" review order, deeming this a related case to Brinker Restaurant Corp. v. Superior Court.
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