California Supreme Court Hears Argument On Brinker To Decide When San Francisco Employers Must Provide Meal Breaks And Rest Breaks

November 15, 2011

By Antonio P. Garcia, Jr., Esq.

As I discussed in my last post, the California Supreme Court granted review of Brinker Restaurant Corporation v. Superior Court (Hohnbaum) (Supreme Court No. S166350), a case examining the issue of when, and in what manner, an employer in the public housekeeping industry must provide meal breaks and rest breaks to its nonexempt employees. On November 8, 2011, the California Supreme Court heard oral argument by the parties.

The Purpose Of Oral Argument

Oral argument is an event during an appeal in which advocates orally present their cases to the court. Oral argument provides advocates the opportunity to answer any questions the justices may have about a case.

Oral argument, however, serves several other important purposes. Because the justices usually have taken positions on the case prior to oral argument after their review of the parties' written briefs, oral argument allows the justices to explain their positions and press them upon their colleagues. Oral argument also presents the justices with the chance to press advocates to explain the scope and logic of the parties' claims, often by posing hypothetical scenarios to see how the parties' positions on the law would affect those scenarios. The comments of the justices also provide some insight as to how they would rule, or in which direction, they are leaning regarding the case. Most importantly, oral argument allows the advocates to assist the justices in reaching the right result and resolving the case correctly.

The Hearing

Oral argument began with a question posed by California Supreme Court Associate Justice Joyce L. Kennard. Justice Kennard is well known among appellate advocates to begin oral argument, and usually with a lengthy question. Justice Kennard pointed out that the statutory language regarding meal breaks contained the word "provide." She emphasized that the California Legislature's placement of that language in the statute was supposed to mean something. Based on that language, an employer only is obligated to make available meal breaks, and was not under a duty to compel an employee take a meal break. The plaintiffs' attorney, Kimberly Kralowec, disagreed, claiming that the word "provide" must be read in context with the policy that California labor laws were designed to protect workers. If the labor laws were there to protect the worker, then employers must do everything necessary to make sure that workers took the breaks that they were entitled.

Associate Justice Goodwin Liu, who recently was appointed and confirmed to sit on the high court, also asked some questions. He asked Ms. Kralowec why it would not be sufficient for employees to be relieved of duty and allowed to do what they wanted during that break, including choosing to work during the break. Ms. Kralowec responded that the statutes and wage orders required that the employee take the break. Justice Liu found that requiring an employee to take their meal break was coercive and actually ran counter to the position of protecting workers. Forcing workers to take their meal breaks limited their freedom to choose what they wanted to do during their breaks.

Associate Justice Carol Corrigan asked that, given the plaintiffs' position, should an employer fire an employee who decided to work during the meal break. Ms. Krawolec said that the employee should be disciplined for working during a meal break, similar to how an employer disciplined an employee who continued to work overtime that the employer had not approved. Justice Kennard found that position to be alarming, and offered the possible scenario of a nurse being fired from her job if she was in the process of saving a person's life at the hospital and the procedure overflowed into the lunch hour. Should the nurse leave the person to die so that she could save her job? Ms. Kralowec responded that the nurse should be disciplined.

The other issue addressed during oral argument concerned whether California Labor Code Section 512 and Industrial Welfare Commission ("IWC") Wage Order No. 5 mandated that a meal break be provided every five consecutive hours of work. Justice Liu appeared to favor the view that a meal break should be provided after every five-hour period worked by the employee. To emphasize this view, Justice Liu focused on the hypothetical in which an employee worked from 9:00 a.m. to 6:00 p.m., and took the break from 12:00 pm to 12:30 pm. From this example, Justice Liu concluded that the employee would be entitled to a second meal break for the 5.5 hours of work because IWC Wage Order No. 5 allowed for the waiver of a meal break for work periods less than six hours. Chief Justice Tani Cantil-Sakauye and Associate Justice Kathryn Werdegar appeared to agree with this position. However, counsel for Brinker, Rex Heinke, disagreed with this position and argued that there was nothing in the statutory and wage order language stating that a meal break be taken for every five consecutive hours of work. He noted that if the Legislature and IWC intended for a meal period to be taken after every five consecutive hours of work, then they would have stated this requirement in the statutory and wage order language. Associate Justice Ming Chin and Associate Justice Marvin Baxter appeared to agree with Mr. Heinke's position.

What We Can Learn From The Hearing

Based on the questions posed and comments raised by the justices, it appeared that the California Supreme Court was leaning toward finding that Brinker's interpretation--that an employer only has a duty to provide meal breaks--to be the correct interpretation of the relevant labor laws. However, the justices appeared to disagree over whether such meal breaks should be taken after every work period of five hours, and the justices' final position on that issue will be revealed in the court's opinion.

An analysis of the California Supreme Court's opinion will be forthcoming.