Posts belonging to Category Judiciary

Brinker v. Superior Court: Oral Argument

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.


Governor Brown Nominates UC Berkeley Professor Goodwin Liu to California Supreme Court

Governor Jerry Brown today nominated Boalt Hall law professor Gordon Liu to the California Supreme Court to replace retiring Justice Carlos Moreno.

If confirmed, Liu would bring sterling credentials and a classically American story of upward mobility to the California Supreme Court. The son of Taiwanese immigrants, Liu attended public schools growing up in Sacramento, before attending college at Stanford and then Yale Law School, after which he clerked for U.S. Supreme Court Justice Ruth Bader Ginsberg. Liu joined the faculty at UC Berkeley’s Boalt Hall School of Law in 2003 after having worked in private practice in Washington, D.C.

The California Bar’s Commission on Judicial Nominees Evaluation will first consider the Liu nomination, and make a non-binding recommendation to the Commission on Judicial Appointments, which will then schedule at least one public hearing. It is the Commission on Judicial Appointments that must ultimately confirm Liu or not.

Despite having withdrawn his nomination by President Obama to the Ninth Circuit Court of Appeals in response to a successful filibuster by Senate Republicans, Professor Liu is expected to enjoy a relatively easy confirmation to the California Supreme Court.

Dukes v. Wal-Mart: Possible Recusal of Scalia Adds Wrinkle to Supreme Court as Oral Argument Takes Place

Justice Antonin Scalia sat on the bench during this week’s oral argument in Dukes v. Wal-Mart, despite calls for him to recuse himself from the case owing to his son, Eugene Scalia, being a partner with Gibson Dunn & Crutcher LLP, which represents Wal-Mart in the appeal. Among those seated in the gallery watching the proceedings: Eugene Scalia.

Justice Scalia’s disqualification would be unusual, as Supreme Court Justices typically do not recuse themselves from cases involving a family member’s law firm. However, Scalia was one of seven justices who in 1993 signed a policy that said they would not withdraw from a case unless there was some “special factor,” such as a relative’s status as lead counsel.

While Eugene Scalia is not active in litigating the Dukes appeal, he does chair Gibson Dunn’s Labor and Employment practice group, which is at least conceptually connected to the case, because the plaintiffs allege workplace discrimination. As a practical matter, though, it is Theodore Bourtos’ appellate group that is principally in charge of the day-to-day Dukes case management.

Those calling for Justice Scalia’s recusal (including Wal-Mart Watch, a union-funded advocacy group) contend that Eugene Scalia stands to benefit financially should his partnership profits increase as a result of the firm’s success in its Wal-Mart representation. In response, Gibson has implemented a procedure to exclude revenues from the Wal-Mart representation from Eugene Scalia’s partnership distribution, effectively an accounting take on the “ethical wall” by which firms isolate an attorney from specified information or matters.

Court watchers speculate that Justice Scalia will likely vote to reverse the Ninth Circuit’s ruling that affirmed the trial court’s discretion in certifying the class of approximately 1.5 million current and former Wal-Mart employees.