After the California Supreme Court Grants Review Of Brinker Restaurant Corp. v. Superior Court, the Department of Labor Standards Enforcement Issues Memo Setting Forth Meal Break Enforcement Policy

On October 22, 2008, the California Supreme Court announced that it will review the Court of Appeal's decision in Brinker Restaurant Corp. v. Superior Court, 165 Cal. App. 4th 25 (2008). Swiftly thereafter, the California Department of Labor Standards Enforcement ("DLSE") issued a new memo setting forth its enforcement policy concerning meal periods.

Opining on what it means to "provide" employees with meal periods under California Labor Code section 512 and the Wage Orders, the Brinker Court of Appeal concluded earlier this year that employers need only make available but need not ensure that meal periods are taken. In light of the California Supreme Court's grant of Plaintiff's petition for review, the Brinker decision may not be cited or relied upon by a court or a party in any pending action.

Employers may continue, however, to rely on a recent line of federal district court decisions, as persuasive authority, which hold that California meal period laws require only that employers make available, but not ensure, that employees take meal periods. This line of cases includes the following: White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007), Brown v. Federal Express Corp., 249 F.R.D. 580 (C.D. Cal. 2008), Kenny v. Supercuts, Inc., 2008 WL 2265194 (N.D. Cal. June 2, 2008), Perez v. Safety-Kleen Systems, Inc., 2008 WL 2949268 (N.D. Cal. July 28, 2008), Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529 (S.D. Cal. 2008), Gabriella v. Wells Fargo Financial, Inc., 2008 WL 3200190 (N.D. Cal. Aug. 4, 2008), and Kimoto v. McDonald's Corp., 2008 WL 4069611 (C.D. Cal. Aug. 28, 2008).

On October 23, 2008, the DLSE withdrew its July 22, 2008 memo, which had directed all DLSE staff to follow the Brinker decision, and issued a new memo setting forth its enforcement policy concerning meal periods in light of the California Supreme Court's recent grant of review of Brinker. The new memo states that until the California Supreme Court rules on Brinker, the DLSE will take the position set forth in the recent line of federal cases that, while an employer may not prevent or discourage employees from taking their meal periods, the employer does not have an affirmative obligation to ensure employees are taking them. The memo explains that until Brinker, no California state court had directly decided the issue of what it means to "provide" meal periods and that neither the statutory nor regulatory language directly answers this fundamental question. The memo disapproves of Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949 (2005), which is often relied upon by the Plaintiffs' Bar, to the extent that it has been interpreted to mean that employers have an affirmative obligation to force employees to take their meal periods and that employees cannot refrain from taking or refuse to take their meal periods. Notably, the DLSE also opines in the memo that the "facts in each [meal period] case must be carefully analyzed," which lends support to employers defending putative class actions involving meal period claims that such claims are not appropriate for class treatment because they involve individualized fact issues.

In sum, until the California Supreme Court decides the Brinker case, employers should continue to ensure that meal periods are taken. That being said, employers in ongoing litigation may continue to rely on the recent persuasive (though not binding) line of federal district court decisions and the DLSE's October 23, 2008 memorandum interpreting California law to require that employers must make available, but not affirmatively ensure, meal periods.