On Tuesday, October 4, 2011, three years to the month after deciding to grant review in the case, the California Supreme Court announced that it would hold oral argument in the Brinker Restaurant v. S.C. (Hohmbaum) case on November 8, 2011. Under the California Supreme Court's rules, it has 90 days after the oral argument to release its opinion in the case.
Brinker has been the most widely anticipated decision in the wage and hour arena for California employers (and their attorneys) for several years. The case will decide whether, in complying with California's rather onerous rest and meal break laws, an employer must simply maintain a policy that is compliant with the law or, alternatively, whether the employer must affirmatively police on an ongoing basis whether its (presumably compliant) policy also is being followed by employees.
If the Court decides that having a compliant policy will suffice, it should become much easier for employers to defend against the tidal wave of costly wage and hour class actions for rest and meal break "violations" in which plaintiffs and their attorneys have typically sought up to two hours' additional wages per day for each employee as well as attorneys' fees.
Foley will be at the oral argument and will provide an immediate update following the argument that should be of great interest to employers — particularly those who are currently involved in rest and meal break litigation, class-based or otherwise. Stay tuned!
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