On August 26, 2010, the Second Appellate District, Division Seven, handed down an unpublished opinion, Brookler v. Radioshack Corp., 2010 WL 3341816 (Aug. 26, 2010) (no. B212893), in which it held as follows:
[U]nless and until our Supreme Court holds otherwise, we agree with and adopt the analysis in Cicairos, supra, 133 Cal.App.4th 949, holding an employer's obligation under the Labor Code and IWC wage orders is to do more than simply permit meal periods in theory; it must also provide them as a practical matter. If the employer does not ensure compliance with meal period requirements, such behavior violates the Labor Code and corresponding wage orders. (See id. at p. 963.) “The IWC intended that, like overtime pay provisions, payment for missed meal and rest periods be enacted as a premium wage to compensate employees, while also acting as an incentive for employers to comply with labor standards.” (Murphy, supra, 30 Cal.4th at p. 1110.)
Id. at *3 (emphasis added). This issue is, of course, now pending before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350 (in which I am co-counsel for the workers).
Multiple publication requests were filed in Brookler (including one by yours truly). Division Seven denied them all. Brookler itself is now pending before the Supreme Court (Brookler v. Radioshack Corp., no. S186357), but the Brookler opinion remains unpublished and uncitable in the many cases involving this issue that have not been stayed pending resolution of Brinker.
On September 30, 2010, the Second Appellate District, Division Eight, handed down an unpublished opinion, Hernandez v. Chipotle Mexican Grill, Inc., 2010 WL 3789012 (Sept. 30, 2010). This decision holds: "We conclude that employers must provide employees with breaks, but need not ensure employees take breaks." Id. at *1. On this basis, Division Eight affirmed the trial court's order denying class certification (which also had been predicated on the turn of that legal question). Id. at *3.
Publication requests were filed in this case as well. Yesterday, Division Eight granted them—unlike their colleagues down the hall in Brookler. Both cases involved the same important legal issue, reached opposing conclusions, yet Division Eight found publication warranted, and Division Seven did not. Why?
The Supreme Court will likely issue "grant and hold" orders in both cases, as it previously did in Brinkley and Faulkinbury. Therefore, Hernandez is not likely to remain published and citable for long. But these strange procedural events only add fuel to the fire burning in the lower state and federal courts.