Brian Ashe Quoted in Law360
"Clear Win or Employers Unlikely in Upcoming Brinker Ruling"

Seyfarth Shaw San Francisco office partner Brian Ashe was quoted in Law360 on April 5 in an article discussing the upcoming Supreme Court decision in the high-stakes wage and hour case against restaurant company Brinker International, Inc. If the court reverses a 2008 decision, attorneys say the fallout could be costly for employers.  

“The debate over the word 'providing' in Labor Code Section 512 is more than academic — it is extremely important to California employers,” said Brian. “If they must 'ensure' that meals are taken by their nonexempt employees, then they must strictly police meal breaks to make certain that they are being taken.”

Even though Brinker appears to be slated to win concerning the most high-profile question in the case, attorneys say the justices seemed to be leaning toward the plaintiffs' position on the so-called rolling five meal break timing issue, which concerns whether employers must provide meal breaks after every consecutive five hours worked, or if they should be based on the total number of hours worked over the course of the day.

Brian said,"...a victory for the workers on the rolling five question would give plaintiffs attorneys 'a back door entrance' to the 'ensure' standard."

“If that is how the opinion is written, then employers will essentially need to 'ensure' that nonexempt employees are permitted to take meal breaks at a certain time, i.e., the middle of the shift,” he added.

Brian predicted, that if passed, "the new requirement for employers would lead to its own rash of class actions, especially because even sophisticated California employers do not currently have policies in place to ensure that meal breaks are taken in the middle of shifts."