Most California employers are waiting patiently for the California Supreme Court to issue its ruling in Brinker v. Superior Court. As we posted a few weeks ago, the main issue in that case is whether an employer must ensure that its employees take their breaks or merely provide those breaks to employees.
The Supreme court heard oral argument on November 8, 2011, which would have required the court to issue a ruling by February 6, 2012. However, the court threw the parties a proverbial curve ball on December 14, 2011 when it vacated the ruling submitting the matter for decision.
Specifically, the Court’s December 14, 2011 order re-opened the case to allow the parties to argue whether any decision should only apply in the future or apply retroactively (and allow plaintiff’s to use the decision to allege past violations). Most observers believe the retroactivity analysis concerns the rolling five-hour issue (whether an employer must provide a meal break within the first five hours of the work day) and not the provide v. ensure issue.
The Court’s order allows the parties 30 days to submit additional briefing. The Court must then issue a ruling by April 12, 2012.