On October 22, 2008, the California Supreme Court agreed to review the closely followed case of Brinker Restaurant v. Superior Court of San Diego. Brinker addressed compliance issues under California law relating to meal periods, rest periods, and off-the-clock work, as well as procedural issues raised in class action lawsuits based on these type of claims.

The California Court of Appeal had issued its decision in Brinker on July 22nd. Among the notable holdings in that decision were that court's finding that the Labor Code requires employers to provide meal and rest periods by making them available, but they need not ensure that they are taken. In addition, the Court of Appeal held that employers do not need to provide a meal period for every five consecutive hours. With respect to rest breaks, it held that an employer must provide them every four hours or "major fraction thereof," with "major fraction" meaning the time between three-and-a-half and four hours. It also concluded that employers are not required to ensure that rest breaks are taken. As for off-the-clock work, the court determined that employers are only liable if they knew or should have known that such prohibited work is taking place.

In addressing the appropriateness of the class action process for claims relating to meal periods, rest periods, and off-the-clock work, the Court of Appeal determined that ascertaining the reason for a missed break required an individualized inquiry that would usually preclude class treatment. Determining the reasons why an employee worked off the clock also required individual analysis, such as whether time records were altered or individual employees were coerced into working unrecorded time.

The California Supreme Court's decision to grant review in the case operates to nullify the Court of Appeal's decision. The Supreme Court's decision in Brinker will not come down for some time. When it does, the opinion should provide valuable guidance to employers on how best to comply with California's meal and rest period requirements and prohibition against off-the-clock work. In the meantime, there are a number of federal court decisions on the subject that may be found persuasive.