Brinker v. Superior Court: Oral Argument

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On November 8, 2011, more than three years after granting review, the California Supreme Court heard oral argument in Brinker v. Super. Ct., 80 Cal. Rptr. 3d 781 (Cal. Ct. App. 2008), rev. granted, 196 P.3d 216 (Cal. Oct. 22, 2008) (No. S166350).  Chiefly at issue is Brinker’s holding that employers “need only provide and not ensure [that meal breaks] are taken.”  Id. at 31.  The hearing also covered rest break issues implicated by Brinkley v. Pub. Storage, Inc., 84 Cal. Rptr. 3d 873, 883 (Cal. Ct. App. 2008), rev. granted, 198 P.3d 1087 (Cal. Jan. 14, 2009) (No. S168806) (“California law does not require an employer to ensure that employees take rest periods.  An employer need only make rest periods available.”).  Video of the oral argument is available at

On the pivotal issue—the interpretation of “provide” and “providing” as used in Labor Code sections 226.7(a) and 512(a)—the justices’ questioning suggested a more formalistic analysis than that seen in previous wage and hour decisions.  Justice Joyce Kennard began the proceedings by asking about whether Sections 226.7 and 512 are “in harmony” with the meal and rest break provisions in California’s IWC Wage Orders.  Chief Justice Tani Cantil-Sakauye, in her first major wage and hour case, then asked her own follow-up questions.  Justice Goodwin Liu, also new to the court, focused his questions on practical matters, asking whether an employee can simply choose to work through a break.

Kimberly Kraweloc, counsel for the real party in interest and the plaintiff at the trial court, responded unequivocally: employers must affirmatively ensure that breaks are taken.  Justice Baxter then asked whether an employer must still pay the premium provided for by Section 226.7(b) when an employee disregards the employer’s instructions and works through a break, to which Kraweloc responded in the affirmative.  As to whether employers can reasonably be expected to implement systems that reliably ensure that all employees take breaks, Kraweloc persuasively argued that, insofar as employers have demonstrated adeptness at otherwise controlling employees’ work schedules, notably in avoiding overtime, it is reasonable to expect that they can do the same as to meal and rest breaks.  Finally, in response to Justice Baxter’s question concerning whether the ruling in Brinker would be applied retroactively, Ms. Kraweloc’s co-counsel, Michael Rubin, responded that the decision would have retroactive effect, pursuant to controlling United States Supreme Court authority.

The Supreme Court must issue its decision within 90 days after the oral argument.