On October 28, 2008, only six days after the California Supreme Court's decision to review Brinker Restaurant v. Superior Court of San Diego, a different California Court of Appeal reached the same conclusions about an employer's obligation to provide meal and rest periods. In Brinkley v. Public Storage, Inc., a class of plaintiffs sued their employer alleging, among other things, that the company had failed to provide adequate meal and rest periods.

In pertinent part, the Court of Appeal found that the employer was under no obligation to "ensure" that employees take meal or rest periods. Instead, employers need only make sure that meal and rest periods are "made available" to employees. Looking at the evidence, the Court of Appeal agreed that although some employees may have missed meal and rest breaks at times, there was no evidence that any of the plaintiffs were denied an opportunity to take such breaks.

The Brinkley decision is not final. The California Supreme Court could be asked to review Brinkley at the same time it reviews Brinker. While there are several persuasive federal court decisions that discuss employer compliance with California meal and rest period laws, the California Supreme Court has yet to weigh in. For now, employers should ensure that all workplace rules regarding meal and rest periods are in compliance with the laws currently in effect, and that policies and procedures are made clear to all employees.