Yesterday, the Supreme Court depublished the opinion in a third Brinker "grant and hold" case, Tien v. Tenet Healthcare Corp., no. S206597.
The Court of Appeal in Tien had affirmed the trial court's order denying class certification, but now the opinion (Tien v. Tenet Healthcare Corp., 209 Cal.App.4th 1077 (2012)) is no longer citable. In December, the Supreme Court depublished two other opinions that similarly misinterpreted Brinker. In the Tien opinion, the Court of Appeal had heavily relied on those two other, now unpublished, opinions, instead of following Brinker itself.
My depublication request in Tien is available at this link. A request was also filed by the plaintiff workers in the case.
This is another strong signal that the Supreme Court disagrees with those who would misinterpret its Brinker opinion as supposedly holding that employers need only "offer" meal periods or make them "available." As I have previously explained, that is not what Brinker held.
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