I have been trying to follow the “meal and rest period” rules this past year, and it is very frustrating. First, employers were supposed to make employees take a meal break in the middle of every shift. Then we were being told that we only had to give our employees an opportunity to take a meal period. Now I heard this issue is “pending in the California Supreme Court” so the rules are unclear. What does it mean when a case is pending in court and how do we know what rule to follow?


The proper interpretation of the meal and rest period rules contained in California Labor Code Section 512 and the Wage Orders is the issue in the case of Brinker Restaurant Corp. v. Superior Court. When a court decision results in a new interpretation or clarification of a key law, such as what happened in the Brinker case, it is sometimes appealed, and a definitive decision on the issue can take several years. To understand how this occurs, and what to expect, an understanding of our state court system is very helpful.

Most employment wage and hour lawsuits are filed in one of the 58 California county-based superior courts. In the Brinker case, employees of several chain restaurants filed suit in the San Diego Superior Court claiming that the restaurants’ meal and rest break policies violated the California Labor Code. The San Diego court held hearings and issued an opinion in favor of the employees.

A superior court decision is not binding outside the county in which it was issued, and cannot be cited by later litigants, even in that county. In other words, individuals filing future lawsuits cannot rely on that court decision to support their cases. Such an opinion only provides guidance on how a particular court may rule on an issue.

A superior court decision, however, can be appealed. There are six appellate districts in California, each covering a geographical region that includes multiple counties. The appellate districts have headquarters in San Francisco, Los Angeles, Sacramento, Fresno, and San Jose. When a superior court decision is appealed, a panel of three appellate judges reviews the proceedings of the superior court, sometimes referred to as the “lower court,” as well as its decision for errors. Generally, no new evidence is admitted. After consideration, the appellate court panel issues an opinion discussing its analysis of the law and the application of the law to the particular facts of the case. If the opinion makes new law for that district, or is important for other reasons, the appellate court, by a majority vote, may order the opinion published. Less than ten percent of appellate court opinions are published.

Published cases create “precedent” that must be followed by all Superior Courts in the district. Also, a published case can be cited and relied on in later lawsuits throughout California. Published cases are eventually bound into books and given a permanent citation address, unless they are depublished first.

An appellate court decision is automatically depublished if the California Supreme Court accepts the case for review. Also, the California Supreme Court is empowered to depublish a published decision, or publish an unpublished decision.

There is generally no automatic right to appeal civil cases to the California Supreme Court, which consists of a Chief Justice and six Associate Justices. However, a party who loses before a California appellate court can file a petition for review by the California Supreme Court. In a very small percentage of cases, the California Supreme Court accepts review, usually because it believes the case involves an important question of law, or there is a need to provide a uniform interpretation of the law. The California Supreme Court can also decide to review a case when no petition for review has been filed.

In the Brinker case, the restaurant owners were unhappy with the superior court decision, and they appealed to the Fourth Appellate District. The appellate court reversed the superior court decision and issued a published opinion stating employers meet their legal obligation by providing employees the opportunity to take meal periods. This was a change in interpretation of the meal period requirements. In response, employee groups filed a petition for review of the Brinker decision with the California Supreme Court, which was accepted. That means that the Brinker appellate opinion, although favorable to employers, was depublished and cannot be relied on. When the California Supreme Court issues its decision, it may decide that employers meet the meal period obligation by providing the opportunity to take a meal period, or it may decide that employers must require employees to take the meal period. Employers are awaiting this decision, which may be issued later this year or possibly not until some time next year. In the meantime, until the California Supreme Court issues an opinion, the best way for an employer to avoid liability in this area is to require employees to take the meal period.
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