Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 49 lived, 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.254 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.255 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. 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.256 D. Limits on IWC’s Power to Alter Labor Code Meal Period Rules In 2000, before Labor Code section 226.7 went into effect, the California Legislature amended Labor Code section 516. As amended, the statute provides that the IWC may adopt or amend Wage Orders with respect to break periods and meal periods “except as provided in Section 512.” On its face, this language would seem to limit the IWC’s authority to adopt or to amend Wage Orders in such a way as to be inconsistent with the specific provisions of Labor Code section 512. 254 Tien petition, 2012 WL 6608787; Lamps Plus petition, 2012 WL 5868726; Hernandez petition, 2012 WL 5392867. 255 Brinker, 53 Cal. 4th at 1034; Tien petition, 2012 WL 6608787, at *16-18; Lamps Plus petition, 2012 WL 5868726, at *9-11; Hernandez petition, 2012 WL 5392867, at *23-24. 256 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. App. 5th 773, 781-82 (2018) (holding defendant did not have to investigate employee time records showing late or missed meal periods to satisfy its duty to “provide” meal periods).
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