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Monday, November 22, 2010

Brookler v. Radioshack Corporation: California Supreme Court Grants Review and Holds Pending Brinker

In Brookler v. Radioshack (August 26, 2010) unpub. 2010 WL 3341816, the Court of Appeal reversed a trial court order denying class certification in a meal and rest period claim. The Court explained:
Citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 (Cicairos), the trial court granted the plaintiffs' motion for class certification of their claims against their employer for failure to provide meal periods as required under the Labor Code. The defendant employer's subsequent motion for decertification was also denied. However, in July 2008, the Fourth District filed its opinion in Brinker Restaurant v. Superior Court (2008) 165 Cal.App.4th 25 (Brinker), holding meal break claims were not amenable to class treatment because the employer need only make meal breaks available, not ensure they are taken. The employer filed another motion for decertification, arguing class certification was inappropriate under Brinker. This time, the trial court granted the motion for decertification. A week later, the California Supreme Court granted review in the Brinker case (review granted Oct. 22, 2008, S166350; see also Brinkley v. Public Storage, review granted Jan. 14, 2009, S168806), to address the proper interpretation of California's statutes and regulations applicable to an employer's duty to provide meal and rest breaks to hourly workers, and the matter is still pending.

Unless and until our Supreme Court holds otherwise, we agree with the analysis in Cicairos which held an employer's obligation under the Labor Code and related wage orders is to do more than simply permit meal breaks in theory; it must also provide them as a practical matter. Accordingly, we reverse.
Slip op. at 1.

On November 17, 2010, the California Supreme Court granted the employer's petition for writ of certiorari, pending Brinker. This increases the list of Brinker grant-and-holds to at least four: Brinkley v. Public Storage; Bradley v. Networkers Int'l LLC; Faulkinbury v. Boyd & Associates; and now Brookler. Brinker, Brinkley, Bradley, Brookler. I guess Faulkinbury is the odd man out.

I believe that the Court also will grant review in Hernandez v. Chipotle Mexican Grill, Inc. (October 28, 2010) --- Cal.App.4th ---, 2010 WL 4244583, even though it doesn't start with "Br."

When the Supremes will hear Brinker is another question entirely.

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