42 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com must be provided during every “rolling” five-hour block of work time, and thus held that employers can provide meal breaks quite early in the work day.229 Following Brinker, the Supreme Court remanded to the Court of Appeal three other meal break class actions for which it had granted review pending issuance of a ruling in Brinker: Flores v. Lamps Plus,230 Tien v. Tenet Healthcare,231 and Hernandez v. Chipotle Mexican Grill.232 Employers rejoiced when the Court of Appeal quickly issued opinions in each of these cases affirming denial of certification, citing Brinker.233 This jubilation was shortlived, however. The plaintiffs in these cases all petitioned the Supreme Court for review, and while these petitions were all denied, the Supreme Court took the unusual step of depublishing each of these opinions. The Supreme Court did not provide any reason for its decision to depublish these cases, and employers were concerned that this was a signal that the Supreme Court was reconsidering its holding in Brinker, or that it intended Brinker to have a very narrow application. To date, however, the Supreme Court has not issued any such limitation or reconsideration of Brinker. Clues to the Supreme Court’s reasoning for these depublications may lie within the petitions for review filed by the plaintiffs in these cases. In each petition, the plaintiffs argued that the Court of Appeal had simply tacked on some language paying lip-service to Brinker to the earlier opinion, while leaving intact discussion that the plaintiffs argued ran contrary to Brinker.234 Specifically, each petition asserted that the Court of Appeal had erred in supposedly stating that an employer could “provide” lawful meal periods by having a policy making lawful meal periods available to employees, while the Supreme Court in Brinker had stated that employees must affirmatively be “relieved of all duty” and that practices that discouraged or prevented employees from taking meal periods were improper.235 In any event, the fact that the Supreme Court declined review of these cases indicates that it likely agreed with the end result, but may have felt that some of the reasoning did not completely fit with Brinker. Employers should therefore continue to assert that Brinker precludes certification of meal period claims except in the most clear-cut cases where workers are uniformly prevented from taking their meal breaks. The California courts have affirmed the nature of the “provide” standard for meal periods, holding that if the employer provided an opportunity for a compliant break but the employee chose to skip it or delay it, there is no violation.236 229 Id. at 1048. 230 195 Cal. App. 4th 389 (2011). 231 192 Cal. App. 4th 1055 (2011). 232 118 Cal. Rptr. 3d 110 (2010). 233 Tien, 209 Cal. App. 4th 1077 (2012); Lamps Plus, 209 Cal. App. 4th 35 (2012); Hernandez, 208 Cal. App. 4th 1487 (2012). 234 Tien petition, 2012 WL 6608787; Lamps Plus petition, 2012 WL 5868726; Hernandez petition, 2012 WL 5392867. 235 Id., Tien petition at *16-18; Lamps Plus petition at *9-11. 236 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 78 (2021) (“We reiterate the rules set forth in Brinker: An employer is liable only if it does not provide an employee with the opportunity to take a compliant meal period. The employer is not liable if the employee chooses to take a short or delayed meal period or no meal period at all. The employer is not required to police meal periods to make sure no work is performed. Instead, the employer's duty is to ensure that it provides the employee with bona fide relief from duty and that this is accurately reflected in the employer's time records. Otherwise, the employer must pay the employee premium wages for any noncompliant meal period.”); Serrano v. Aerotek, Inc., 21 Cal.
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