By: Sam G. Sherman, Esq.

The California Supreme Court announced Tuesday that it will hear oral argument in Brinker v. Superior Court. Oral argument is scheduled for November 8, 2011 at 9:00 a.m. in San Francisco. The Court generally has only 90 days from oral argument to issue its decision.

Brinker has been watched closely by employers (and plaintiff’s counsel) across the state. At issue is whether an employer must merely provide its employees with meal and rest breaks or, on the other hand, whether they must actually ensure those breaks are taken.

Requiring employers to “ensure” a break is taken imposes a significant burden on emloyers to make sure each of its employees actually takes the breaks provided. If an employee sued for a failure to provide meal and rest breaks, that employee could prevail by stating that, although they knew the employer provided the breaks, s/he never took the breaks. The employer would then be liable unless it proved the break was actually taken.