As many haven noted, another Court of Appeal case has agreed with Brinker. Oddly, it’s named Brinkley. Greg correctly points out: don’t rely on this one either, it will probably fall under a “grant and hold” since the same essential issue is on review in Brinker.

This would seem to suggest that there is a majority of judges agreeing with the Brinker analysis, but we saw that in Murphy only to have the Supreme Court unanimously overturn them.

My personal view was that the arguments for “penalty” in Murphy were mostly political, and that given that they could bear either interpretation, the law generally is supposed to liberally favor employees. Obviously, we can discuss that at length another time. My point is, I don’t think the arguments are as brazenly political in this situation. It really is just interpreting what you have to do to provide a meal period.

If providing means enforcing, it means enforcing. But if it means provide and the rest is up to the employee, then this recent line of cases is right. Do I believe that a change to the new rule will make “wink-wink nod-nod” situations more likely? I’m not sure I do. I think those are already rampant. Those situations still are arguably not providing, so enforcement is still available.

Frankly, I think it’s silly that employers were subject to liability for providing meal periods but not kicking people out at gunpoint. There’s plenty of people who aren’t providing jack to deal with.

I’ll be interested to see where this goes.