It took two years for the California Supreme Court to schedule its November 8, 2011 oral argument in the Brinker case (Brinker Restaurant Corp. v Superior Court (Hohnbaum)). Under the Court's rules, this means that a decision will be coming out within the next 90 days. With tens, if not hundreds, of millions being spent in the last decade arguing and settling cases involving the issues posed in Brinker, employers, employees, and their legal representatives are all eagerly anticipating the resolution of the case. Although the case presents several issues, the crux of the dispute has been whether California employers must ensure that workers take their authorized breaks or whether it is adequate to simply make breaks available and allow the employees to decide to take breaks on their own.

The plaintiffs maintain that the employer is required to make sure that each employee takes his or her authorized breaks. This position did not seem to be carrying the day, however, with the Supreme Court. Justices Corrigan and Baxter, two of the more conservative members of the Court, seemed particularly unimpressed by the suggestion by the plaintiffs' attorney that it is appropriate to discipline and even terminate employees who do not take their authorized breaks. The questions posed by Justice Goodwin Liu, the newest and arguably most liberal member of the Court, however, betrayed perhaps even greater skepticism. Justice Liu questioned how the plaintiffs' attorney could square the argument that employers must monitor an employee's behavior during breaks with the employer's obligation to suspend control over the employee at the same time? It appears the questions asked by a majority of the Court's members signaled understanding of, if not outright agreement with, Brinker's position that an employer need only provide (not guarantee) breaks authorized by law and employer policy.

The tenor of the questioning on other issues, however, suggested that Brinker may not win on all points.

For example, on the issue as to whether meal periods are required during every five consecutive hours worked or need only be provided based on the total number of hours worked over the entire day, the Justice's lines of questioning seemed to suggest that they favored the interpretation by the plaintiffs and the California Department of Labor Standards and Enforcement of the statute and relevant Industrial Welfare Commission regulations. A decision in favor of the "rolling" or "consecutive" five-hour meal standard could significantly affect employers in the restaurant industry, such as Brinker, that often provide meal periods at or around the start of a shift. Employers in other industries that can more easily schedule meal breaks towards the middle of a shift may have an easier time complying with an adverse decision on that issue.

In addition, the Court seemed disinclined to agree with the appellate court that the case should be denied class treatment entirely, and seemed to be poised to let at least certain aspects of the case be certified as a class action. For example, one of the employees' lawyers argued strongly that the trial court's decisions regarding class certification of a purportedly coercive Brinker policy of not allowing employees to pick up tips left during otherwise authorized rest breaks should have been upheld by the court of appeal. Though not necessarily a winner, this argument at least seemed to command the attention of the Supreme Court Justices.

It has taken the Court more than two years to decide this case, and millions of dollars are riding on the outcome. The most likely outcome? It appears that the Supreme Court, like Solomon, is poised to end up "splitting the baby" and rendering a complex decision that will leave no one completely happy, but also no one completely bereft.