Westlaw Journal Publishes Akin Gump Article on Impact of Brinker Restaurant v. Superior Court

“2 years later, Brinker’s impact still felt,” an article by Akin Gump Supreme Court and appellate practice co-head Rex Heinke, labor and employment associate Christopher Petersen and summer associate Josh Rubin, has been published by Westlaw Journal Employment.

The article examines the impact of the 2012 California Supreme Court decision in Brinker Restaurant Corp. v. Superior Court, in which the court ruled that “employers are not obligated to ensure their employees take required meal and rest breaks, but rather must only provide those breaks for employees to take or decline as they wish.”  As the authors note, “This decision had its largest impact on the issue of class certification.”

Noting that, despite the clarity Brinker provided, the decision raised questions that resulted in differing conclusions by state and federal courts, the article describes different mechanisms that plaintiffs have used to obtain class certification, as well as judicial responses to those attempts.

The authors state that “Ultimately, the Brinker court’s clarification of the ‘provide’ versus ‘ensure’ distinction has made it exceedingly difficult for plaintiffs to obtain certification when their employers have adopted formal policies that comply with California’s wage orders.”

They conclude by noting that, so long as an employer’s formal policies comply with state requirements, “his or her employees will be unable to obtain class certification on the theory that wage violations occurred notwithstanding these policies.” The California Supreme Court, they state, will have to be the ultimate arbiter in these conflicts and questions.

To read the full article, please click here.