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« Brinker press coverage | Main | Six takeaways from Brinker for California workers »

Friday, April 13, 2012



Face it you lost.

Kimberly A. Kralowec

That is an extremely unprofessional comment and almost does not deserve a response, especially given the commenter's unwillingness to publicly identify himself.

But I will not only publish it on my site, I will respond to it.

When the Court of Appeal was done with this case, we had no class left. Now, we have a certified rest break class. We have a roadmap to certification of the meal period class, under a compliance standard that gave us 90% of what we asked for and rejected the employer's formulation of the law. By petitioning to the Supreme Court, and vigorously pursuing our case there, we revived our class action for the benefit of over 60,000 Brinker workers. You call that a loss?

I will be commenting later on the great class certification language in the opinion.

J Koehn

Quite frankly, the comment reveals that the poster neither knows nor cares what the court's decision actually says.

A point furthermore, that emphasizes employers neglect the directives Kim has quoted, at their peril: those who "suffer or permit" their employees to continue to work through their meal breaks, will be subject to regular pay and overtime charges, and if they fail to pay that overtime, will be subject to penalties and interest.

Janet M. Koehn
290 Maple Court, Ste 118
Ventura CA 93003

Practice limited to employment and personal rights disputes

A Facebook User

Tip of the hat to Kim and Co. If this is a defeat for employee rights, I'd love to see a victory.

sima fard

It would be so fickle and simplistic as a practitioner to make sweeping comments like "you lost" or "we won."
The best approach would be to read what each side contended and then read the court's opinion. Moreover, the biggest victory for the labor force is that employers would tread at their own peril if they think they could meet the requirements by just making the meal break available.
The most significant part of the decision in mmy practice is the standard for class certification which has been stated clearly by the Court, especially in the portion dealing with rest breaks.
The other key point is this Court's warning to activist judges who engage in merit analysis unncessarily to stop in the name of God and look for the theory of recovery and the uniform policiies and practices.

we are very happy with this decision and hope employers across the State will implement it ASAP.
Sima Fard, Esq.
Irvine, CA
one happy labor atty.

Paul Glusman

This is actually a great victory. Kim and her co-counsel took a court of appeal defeat and turned it into a victory for their clients. And, if any employer thinks that this means they don't have to relieve employees of duty for meal breaks -- well, they will get an unpleasant surprise down the line.

Marilynn Mika Spencer

To Kim and the entire team:

Thank you for your grand efforts on this case! We all know how time-consuming and overwhelming it was. Your quality work paid off with this truly helpful decision. I have two cases right now that are suddenly much stronger.

Marilynn Mika Spencer
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile

Louis Benowitz

It is unfortunate that the news coverage on this case ignores the results that Kim and her co-counsel achieved in this case. As Kim and others have noted, the opinion does not allow employers to simply pay lip service to giving breaks. Among other things, the opinion bars waiver as a defense where breaks were never authorized and requires the employer to affirmatively relieve the employee of duty so that he or she can exercise a meaningful choice about whether to take a break.

Moreover, the Court re-certified the rest period subclass as a straightforward matter, which will likely result in a tremendous recovery for thousands of workers -- regardless of how the meal period certification issue plays out on remand. In fact, in its discussions on class certification, the Court went to painstaking lengths to highlight that meal and rest period cases can still be certified while favorably citing Cicairos and Jaimez, and while giving no credence to the countless decisions based on a pure "make available" standard that cursorily concluded that such claims are too individualized to ever certify.

Last time I checked, losers don't walk away in a much better position than where they started -- which is exactly what Kim and her co-counsel did as a result of this decision after the abysmal result in the Court of Appeal. Indeed, the vast majority of the case is back in play now on a class-wide basis thanks to their efforts. It's truly sad that so much of the news coverage on this decision ignores these points in favor of the workers, as well as so many others.

Jennifer Kramer

The Supreme Court commented favorably on the decisions in Dilts v. Penske, Cicairos v. Summit Logistics, and Jaimez v. Daiohs USA. Clearly those in the press who view the decision as a "win" for employers are not familiar with these cases and do not understand the importance of the Brinker decision for employees in California. "Bone fide relief from duty" does not absolve an employer from its duty to provide meal breaks.

Mark Wagner

I think you fought a great fight and did very well. Ignore the ignorant and those who do not care about others. The decision is not what employers are now claiming it is and shame on them for trying to fool others into thinking it is ok to take advantage of employees

Mark H. Wagner, Esq.
Wagner Legal Group
(310) 857-5293

John Martin Show

There are many victories for the employee in this decision, one only need read it, including reinforcing the discretion of the trial judge, and I personally read into at least the concurring opinion (which was not unfavorably mentioned in the majority opinion or dissented) which cites statistical evidence methods at the certification stage with approval for example. Great job to all who worked hard on this case and provided amicus as well.

Manbir Chowdhary

It’s ironic that the California Supreme Court’s decision in Brinker has been touted by certain segments of the news media as a ‘slam-dunk’ victory for employers.

While the decision may fall short of requiring employers to prohibit work during a non-exempt employee’s meal period, the Court has clearly identified an employer’s affirmative obligations in relieving their non-exempt employees of all duty to ensure meal period compliance.

Furthermore, the fact that the Supreme Court upheld the trial court’s certification of the rest break subclass, and remanded the meal break subclass to the trial court for reconsideration, will make it more difficult for employers to defeat class certification in similar wage & hour suits.

This result was a definite turn-around from the Court of Appeal decision, and serves to cement the rights of California workers.

Kimberly A. Kralowec

Thank you, everybody, for the kind words and for posting your thoughts on the case. Please keep the comments coming as this is a fascinating discussion.

James H. Cordes

The California Supreme Court more closely defined and thereby significantly broadened the protections of California hourly wage workers to receive meal and rest breaks, despite claims by management side trade groups and their advocates to the contrary.

The essence of the dispute before the California Supreme Court was what it meant for an employer to "provide" meal breaks to hourly wage workers. Employer-side advocates wanted the Court to define "provide" as simply to "make available," so that placing benign language in employee handbooks purporting to allow for lunch breaks was enough to satisfy the law, even if employers in fact erected significant obstacles to breaks through scheduling and work load assignments. What Supreme Court did was to describe several affirmative steps an employer must take in order to comply with California’s meal break requirements. Those steps include (1) relieving its employees of all duty, (2) relinquishing control over its employees’ activities, and (3) permiting employees a reasonable opportunity to take an uninterrupted 30 meal break. In addition, the Court made it clear that employers are prohibited from impeding or discouraging their employees from taking their breaks.

To the extent that this opinion amounted to a claim victory for employer advocates, it is because the Supreme Court did not require employers to "ensure" meal breaks by "policing" the workplace, which is a position employee advocates never took.

In short, the California Supreme Court opinion in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), No. S166350 goes a long way towards fulfilling the promise of California law that hourly wage workers can take 10 minute breaks and a 30 minute meal break through out their workday.


"You lost"? Wow. Someone didn't read the case. (Or if they did, they don't understand it.)

Before this decision, defendant had won on all three subclasses.

After this decision, defendant won one, lost one, and still has to fight one back in the trial court.

So the score went from 0-3 to 1-1-1.

How does going from 0-3 to 1-1-1 constitute a "loss" for the plaintiff?

Clearly, Brinker is a loss for the defendant.


Congratulations on your win. We will see how many employees chose to keep working after they are affirmatively relieved of duty for 30 minutes.

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