High Court Leans Toward Employers in ‘Brinker’

SAN FRANCISCO — Management-side employment lawyers were optimistic after the California Supreme Court held oral argument Tuesday in a case involving state-mandated meal and rest breaks — arguably the hottest case on the court’s 2011 docket.

The court seemed inclined to agree with employers that they merely have to provide workers with breaks, not make sure they get to take them.

Some 70 amici curiae voiced opinions in Brinker v. Superior Court (Hohnbaum), S166350, on the wage-and-hour suit filed by a proposed class of an estimated 60,000 hourly workers against Brinker Restaurant Corp., which operates restaurant chains such as Chili’s and Macaroni Grill.

The newest addition to the bench, Justice Goodwin Liu, emerged on Tuesday as one of the most active questioners on the high court. He was dismissive of the idea that employers should make sure that workers take their breaks.

“Isn’t the hallmark of a meal period that the employer is essentially supposed to suspend control over that employee?” Liu asked Kimberly Kralowec of the Kralowec Law Group in San Francisco, who represents the plaintiffs on appeal.

“No,” Kralowec answered. “Suspending control is part of it, but the employer has a responsibility to ensure the employee isn’t working.”

But Liu — along with Justices Marvin Baxter and Joyce Kennard — didn’t like that idea.

“Isn’t that kind of coercive, counsel?” Liu asked. “Isn’t the most worker-friendly interpretation that the worker should be able to do whatever they want during the meal period?”

A San Diego judge certified the proposed class of Brinker employees in 2006. But the Fourth District Court of Appeal said the employer can’t be held liable if workers don’t take their breaks, and said there wasn’t enough commonality for the claims to proceed as a class.

Lawyers watching the oral arguments on Tuesday sensed the court will most likely issue a nuanced ruling.

“I think the court is going to stake out a little bit of a compromise decision,” said Rudy Exelrod Zieff & Lowe partner David Lowe, a plaintiff-side employment lawyer who wasn’t involved in the case who tuned in to a webcast of the proceedings.

The court’s likely to adopt some version of the “make available” standard, he said, but “they may also include some language in the opinion emphasizing that employers may not impede or discourage or dissuade workers from taking those breaks.”

In particular, some of the justices seemed open to Altshuler Berzon partner Michael Rubin’s argument that the Fourth District erred in completely throwing out the class certification order — particularly as it relates to the plaintiffs’ claims about missing rest breaks.

Felicia Reid, a partner in the San Francisco office of Curiale Hirschfeld Kraemer, suspects that if the court chooses the more relaxed standard for employers, the ruling will also create safeguards for workers.

“There is a whole host of things they may decide need to be put in place if they’re going to move away from the strict liability standard that plaintiffs have been arguing in the past four or five years in these big class actions,” Reid said.

During oral argument, Kralowec argued that making sure workers don’t work during breaks is not a new standard — it’s the same as making sure they don’t work overtime without permission.

But the justices were hung up on the idea that a worker could be fired for disobeying that policy and working through a break.

Kennard at one point, gesticulating dramatically, threw out a hypothetical about a nurse being forced to take a meal break in the middle of saving a patient’s life.

“You would like to see some flexibility, and as I see it, that’s what the big fight is about,” Kennard said to Rex Heinke, the Akin Gump Strauss Hauer & Feld partner who represents Brinker.