The Supreme Court vacated the “submitted” date of November 8, 2011 (when oral arguments were held) in the Brinker case and accepted additional briefing. Court rules require the Court to issue its written opinion within 90 days of the case being “submitted.” Thus previously, a decision was expected by early February. The Court’s recent order allows additional briefing up until January 13, whereupon the case will again be deemed “submitted.” There will be no additional oral argument, unless the Court makes a further change.Most of you are familiar by now with the importance of the Brinker decision, which will among other things decide whether employers must ensure employees take meal periods whether or not employees want them, or whether employers must merely make them available with employees having the right to waive them. The California Labor Commissioner has until recently asserted that meal periods are mandatory regardless of employee preferences.
While most attendees at the oral argument felt that the justices were leaning in favor of employers on that central question, it also appeared as though several justices favored a “rolling” five hour meal period requirement. In other words, that a meal period must be made available every five hours. California Labor Code Sec. 512 states in relevant part: “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes . . .” Employers have generally interpreted that to mean that employees must be provided a meal period by no later than the beginning of the fifth hour of a shift but that only 1 meal period must be during an 8 hour shift. Under the potential Court interpretation, if a meal period was provided early in the shift, e.g., the beginning of the second hour, the employee would be entitled to another meal period late in an eight hour shift, i.e., by the fifth hour after the first meal period. While this would be a rare circumstance, and manageable by employers prospectively, the California Employment Law Council became concerned that such a ruling might be made effective retroactively, and if that was the case, it would be a litigation magnet for plaintiff attorneys since businesses would not have maintained records to defend such an unanticipated interpretation. Accordingly, they sought leave to file a brief arguing that any such ruling should be made be made effective prospectively only. They were granted the right to brief the issue and plaintiff attorneys the right to respond.
The new date anticipated for a Supreme Court decision is April 13, 2012.
|photo under license from Crestock Creative Commons|