As first reported by WageLaw, the petition for review in Brinker has indeed been filed.  You can view the docket here. (The new case number is S166350.)

I long for the day when at least the Appellate courts put their filings on-line.  If I chance upon a copy, I’ll post it.

I have August 21, 2008 as the date the Brinker opinion goes final, and, therefore I have September 1, 2008 as the deadline to file a Petition for Review (unless an extension is granted).  My calendaring skills are—well, let’s just say it’s better I’m not a secretary, so if those are wrong, please let me know.

The docket is here.  I’m not sure if the Supreme Court will assign a new case number of not, but the old docket for the original Supreme Court case is here.

Just an anecdote.  I was at a mediation yesterday.  Both my client and the mediator asked me about the Brinker case, and both were under the impression it was solid good law.  

Does the DLSE, who is apparently trying to help employers, really want to be responsible for the large number of small businesses that will rely on bad information and get stung here?

Clarity first, leniency second (and where appropriate).

According to WageLaw and this memo posted by Shaw & Valenza, the DLSE has changed their Field Manual to order enforcement along the lines of the recent Brinker case.  As far as I know, the case hasn’t been dismissed (the docket seems clear), so it’s jumping the gun a little bit, don’t you think?

Of course, the DLSE wanted the first Brinker opinion published, even though it disagreed with existing DLSE policy.  The DIR did not reply to questions at the time.

So my question to the group here is this: the DLSE (at least at the top) is working hard to promulgate pro-employer policies.  But many employers seem to want (correctly, I think) clarity as much as leniency.  This seems to just be reducing clarity less than creating leniency.

Take the Kenneth Cole case as a model.  Long before the Supreme Court held that money awarded for missed meal periods and rest breaks were “wages” and not “penalties” the DLSE issued a “precedent decision” holding that they were penalties.  After an abortive attempt in Southern California, the appelate courts started weighing in.  The vast majority agreed with the DLSE.

But then the Supreme Court unanimously went against all of them. So, tell me—isn’t the DLSE, in its attempt to help employers, just sticking them in a giant spring-loaded trap?

The UCL Practitioner: Discussing an article in this morning’s Recorder, Kimberly believes this creates a split of authority with Cicairos.

Wage Law keeps its analysis short due to a new arrival in the family. Mazel tov.  Their quick take: “if this had been the first appellate decision in California concerning wage and hour class actions, there might never have been a second wage and hour class action”

Robert Nuddleman: “There are still plenty of ways an employee could claim s/he was dissuaded from taking a required break.”

Shaw Valenza: “a major decision that could bring meal and break period class actions to a screeching halt”

Kent Sprinkle: Notes the Brinker court’s reliance on federal district court opinions.

It’s worth pointing out that the Employment Law Information Network noted recently that wage and hour lawsuits have increased again this year.  The judges don’t live in a bubble aren’t aren’t immune to considerations beyond the trial transcript.

All in all, I think there’s a bit of irrational exuberance in the reaction to this case.  First of all, I can’t believe it won’t be reviewed (and therefore depublished) by the Cal Supremes.  Second of all, this doesn’t mean that (1) a follow-up court of appeal won’t accept some kind of McDonnell Douglas-Burdine like analysis of the circumstantial evidnece of non-obvious discouragement, or that (2) this is the end of wage-hour class actions.

All of this site’s commentary on Brinker throughout its history is avaialble by clicking on the “Brinker” item on the billtrack bar to the left.

UPDATE: The Governor even had a statement on this case.

The Court of Appeal for the Fourth District followed up on its earlier unpublished opinion in Brinker v. Superior Court (Hohnbaum) with a new (temporarily at least) published opinion.

This is a huge victory for employers on two counts.  First, employers no longer have to frog march their employees out to meal periods.  Second, class certification is not appropriate where the individual issue of unlawful prevention of taking a meal period prevails over the class-wide question.

The first part, of course, reverses the policy that employers had to ensure that employees took a meal period in response to concerns that passive allowance as opposed to active insistence would lead to “wink-wink nod-nod” abuses inconsistent with written policies.

The other side of the equation has to do with the proliferation of wage and hour class actions based on essentially unprovable facts leading to huge settlements.  With the legislature and executive in the hands of different parties, the Courts will be taking the lead on these issues for now, since no bill addressing this is likely to clear.  So, apparently, this Court of Appeal decided to put the brakes on both the class actions and the meal period cases.

But, don’t change that handbook yet.

This case was already headed to the Supremes before the Court of Appeal yanked it back.  No doubt it will be back there, and we’ll be on Brinker watch yet again.  I supposed tehcnically, until this case is certified for review, you don’t have to do anything other than make meal periods available.  But who knows how long that would be.

I would simply not change anything until this is resolved.

WageLaw has an interesting update on Brinker, including a copy of the DIR’s request for publication.They note that:

Proving that it is now little more than a political spoil, Labor Commissioner Angela Bradstreet also sought publication of the opinion, even though it contradicted a long-standing DLSE position (taken when the GOP did not control the DLSE’s policies).  

The DIR has not returned multiple requests for comment on this matter.  The DIR assures me my request has been forwarded to “the appropriate person,” but I’ve heard nothing. 

Just a few notes about the past week.

At the request of the Court of Appeal, review is granted on this court’s own motion. The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its opinion and reconsider the matter as it sees fit. The petition for review is denied as moot. The requests for publication are denied as moot. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ

Interesting. I was hoping for a meatier opinion. Maybe that’s what we’ll get.

UPDATE: This is also interesting. The Court of Appeal asked the Supreme Court to deny all of the requests for publication, but look who one of the parties requesting publication was:

That wouldn’t have anything to do with Miles Locker’s involvement as amicus curiae for the other side, would it? I’ll try and find out more.

[display_podcast]The article referenced in the podcast is available here. 

The Supreme Court docket is here.

 That’s Kimberly A. Kralowec of The UCL Practitioner. 

The docket is here.

This week we’re wrapping up this year’s legislative session, and touching on the Brinker opinion.
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Also significant here is that this is another reversal of a trial court’s supposedly broad discretion to make class certification decisions. Here the class certification was reversed. Is it going too far to wonder if Sav-On is a dead letter, both in its “pro-class” and “pro-discretion” senses?

We’ll all digest this over the coming days, but here is some of the choice language:

Furthermore, because (as the parties acknowledge) Brinker’s hourly employees
may waive their rest breaks, and thus Brinker is not obligated to ensure that its employees
take those breaks, any showing on a class basis that plaintiffs or other members of the
proposed class missed rest breaks or took shortened rest breaks would not necessarily
establish, without further individualized proof, that Brinker violated the provisions of
section 226.7, subdivision (a) and IWC Wage Order No. 5 as plaintiffs allege in their
complaint.
(Slip. Op. at 25)

They punted on the big question about whether employers must “force” meal periods, but they implied in a few places that’s where they would go:

“The term “provide” is defined in Merriam-Webster’s Collegiate Dictionary (11th ed. 2006) at
page 1001 as “to supply or make available.” (Italics added.)”

(Slip. Op at 30.)

In White v. Starbucks Corp. (N.D.Cal. July 2, 2007) 497 F.Supp.2d 1080
(Starbucks), the United States District Court for the Northern District of California
recently concluded that, under sections 512(a) and 226.7, “the California Supreme
Court . . . would require only that an employer offer meal breaks, without forcing
employers actively to ensure that workers are taking these breaks,” and stated that “the
employee must show that he was forced to forego his meal breaks as opposed to merely
showing that he did not take them regardless of the reason.”

(Slip. Op. at 39-40)

At the end of the day, the Court didn’t address that issue, and I don’t think we’re done here. This one is unpublished. I’ll post if there are any requests for publication added to the docket.

Shaw Valenza has their take here.

My guess on why they didn’t publish this? Two reasons: (1) they think it’s going up a level anyway, or (2) they think it’s going down and back up. I can see either or both happening.

Meanwhile, unless you’ve got the coin to fight one up to the Tenderloin, keep ensuring your employees take their meal periods.

The Legislature is busy with other things this week, so we turn to the courts.

“Wage Law” has more on Brinker, here.

The one and only unanimous view we’ve heard is that Miles Locker argued well for the amici and that the justices seemed very interested in what he had to say about the DLSE regulations and practices. Aside from that, defense lawyers seemed to believe the employer’s side was better presented, and employees’ lawyers thought the opposite.

Shocker!  I didn’t hear it, and regardless of who argued it better, I don’t expect any huge deviation from precedent from the Court of Appeal.  Maybe the Supremes will take it up.  We’ll see.

Brinker revisits the holding in Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, which affirmatively requires employers to ensure that workers are actually relieved of all duty during meal periods. Employer-side lawyers have argued that all an employer need do is make the meal periods available. This case was argued on September 13, 2007, and it’s case info page is here.

The unpublished opinion is here: Brinker Restr. Corp. v. Hohnbaum (4th Dist. No. D049331): Unpublished

If you are viewing this page, you have clicked on a link to show all posts referencing this case. They should be displayed below.

New developments on the end of the Legislature’s session.

I completed my interviews for this early, and I will be in Sacramento on business next week, so I wanted to be sure to get this up ASAP. Enjoy.

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