Ever since review was granted in 2008, employers with workers in California have been awaiting the California Supreme Court’s decision in Brinker Restaurant v. Superior Court (Hohnbaum) (“Brinker”), S.166350, review granted 10/22/08. Brinker presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to non-exempt workers. Specifically, the Court is expected to rule on the crucial issue of whether the requirement that an employer “provide” a meal break under Labor Code section 512 requires the employer to ensure that all breaks are taken or merely make breaks available through good faith efforts. The Court is also expected to rule on how the definition of “provide” affects the ability for workers to successfully certify a class action that includes break claims. This decision will affect all employers with workers in the State of California. The Court has set oral argument on Tuesday, November 8, 2011 in San Francisco, which indicates that the Court has a tentative draft opinion. The Court's procedures typically require it to file its written opinion within 90 days of oral argument.

Employers should review their current break policies carefully and be aware that new standards may be set by the Court between November 2011 and February 2012, the timeframe when the decision will likely be issued.