Transportation 57

The California Supreme Court announced this week that it will hold oral argument in the long-pending case of Brinker Restaurant Corp. v. Superior Court, No. S166350, on November 8, 2011. The Court's decision, which should be delivered any time between the date of the argument and early February, 2012 (the Court issues orders within 90 days of oral argument), is expected to clarify the obligations of employers under California's meal and rest break rules, which have spawned numerous individual and class action lawsuits against employers throughout California in and out of the transportation industry. Among other things, the California Supreme Court is expected to resolve the contentious question of whether California's requirement that employers "provide" employees with 30-minute off-duty meal breaks means that employers must ensure that employees take those breaks (the "ensure" standard), or that employers must make those breaks available, leaving employees with the discretion to take them at their option (the "provide" standard).

The Brinker lawsuit was filed in August 2004. After rulings on merits and class certification issues at the trial court level, the California Court of Appeal in 2008 approved the provide standard. The California Division of Labor Standards Enforcement (the “DLSE”) immediately sided with the Court of Appeals and adopted the provide standard. Numerous state and federal courts have likewise adopted the "provide" standard, although some have favored the "ensure" standard. In October 2008, the California Supreme Court vacated the decision of the Court of Appeals. The California Supreme Court's ruling in Brinker is expected to settle this long-standing dispute.