Oral Arguments Scheduled in Brinker

The Supreme Court has announced that on November 8, 2011, three years after taking the case, oral arguments will be held.  What the court does in this case will have substantial impact. 

The parties to the case can't even come to terms on the nature of the issues to be addressed by the court.  Of course, we are all very interested to learn whether an employer must ensure that an employee take his/her meal period or whether an employer complies with the law simply by making the meal period available to the employee. 

However, there is another, very compelling question the court will address.  The court has asked the parties to address whether courts can accept survey and statistical evidence as a method for proving meal period, rest period or "off-the-clock" claims on a classwide basis.  This issue can have a substantial impact on all employers. 

The plaintiffs argue that survey and statistical evidence can and should be used even if the court adopts the "make available" standard for the taking of meal and rest periods.  Plaintiffs say that Brinker's uniform policy and centralized timekeeping system, combined with "representative" testimony of 26 employees is a sufficient basis for prosecuting a class action lawsuit with 59,000 employees. 

Of course, the defendant claims that it does not have a uniform policy of preventing employees from taking meal periods.  Moreover, the decision as to the use of a rest period depended on each particular employee and particular manager.  Thus, the case focuses on the particular facts and circumstances of each employee. 

I suspect that the court will adopt some class action standards that will govern other employment cases, regardless of the outcome of the first issue -- whether the employer must ensure compliance with meal and rest periods or simply make them available. 

I also suspect that if the ruling is not somehow favorable to employees that our Democrat-controlled Legislature will send a bill to our Democrat Governor to make sure that an employer compel the use of rest and meal periods.  And that would be an unwise move on the part of our government. 

Employment laws in California are too complicated.  There are too many rules and too many technicalities.  It is too easy for a good employer (which I believe most are) to unwittingly violate wage laws.  And they often do it in an effort to benefit an employee. 

For example, consider the employee who prefers to leave work early as opposed to take a lunch.  I have had clients permit their workers this favor.  Unfortunately, when an employee loses a job he/she often looks for revenge or some way to get back at the employer.  I have seen many cases where an employee filed a complaint because the employer did not technically comply with the meal mandate.  That resulted in payment of the 1-hour premium pay as well as the 30-day waiting period penalty. 

It's time for government in California to wake up.  There are sufficient laws to protect employees.  Make it easier for employers and employees to structure their workdays, enjoy life, and avoid lawsuits.