The California Supreme Court has granted a request to depublish Tien v. Healthcare Corp., 209 Cal. App. 4th 1077 (2012), in which California’s intermediate appellate court had affirmed a trial court’s denial of certification of meal break claims. Tien’s depublication follows the Supreme Court’s recent issuance of orders to depublish two other meal break cases: Lamps Plus Overtime Cases, 146 Cal. Rptr. 3d 691 (2012), and Hernandez v. Chipotle Mexican Grill, Inc., 146 Cal. Rptr. 3d 424 (2012).
The common thread in all three depublished cases is their interpretation of Brinker v. Superior Court, 53 Cal. 4th 1004 (2012), all three having read Brinker to require employers simply to “make available” or “offer” meal periods. When Brinker was issued, public consensus was that neither the plaintiffs’ bar nor employers had clearly prevailed. The Court devised a standard that fell between employers’ proposal that they be required only to offer meal breaks, and plaintiffs’ argument that employers be required to ensure that meal breaks are taken. While Brinker engendered disappointment among workers’ advocates at the time it came down, the Supreme Court’s recent disagreement with cases holding that meal breaks must merely be offered could indicate a doctrinal shift towards a policy of meal break enforcement rather than availability.
In urging depublication of Tien, prominent class action specialist Kimberly Kralowec argued that Tien constitutes a “misreading” of Brinker, explaining that “[t]he Tien opinion wholly fails to acknowledge this Court’s explicit holding in Brinker that ‘[t]he wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.’” Depublication Request at 4 (quoting Brinker at 1040).
Kralowec’s depublication request also assailed Tien for misreading Brinker with respect to California’s rest break law, and for adopting the reasoning of two federal cases frequently cited by employer defendants, Brown v. FedEx, 249 F.R.D. 580 (C.D. Cal. 2008), and Kenny v. Supercuts, 252 F.R.D. 641 (N.D. Cal. 2008). The employer defendant in Brinker had urged the Supreme Court to adopt the reasoning of Brown and Kenny, but the court “conspicuously declined to do so,” Kralowec’s letter notes.
The full text of Kraweloc’s letter is available here.