Robert Tollen Quoted in California Executive
"State Supreme Court Agrees to Hear Landmark Meal Break Case"

Robert Tollen was quoted in the October 28, 2008 edition of California Executive in the article, "State Supreme Court Agrees to Hear Landmark Meal Break Case." The article discussed the landmark court victory for California employers in the case of Brinker Restaurant Corp. v. Superior Court of San Diego County, which holds that claims of meal break and rest period violations are not suitable for class certification because employers should not be responsible for enforcing whether breaks are indeed taken. A previous case decided three years ago, Cicairos v. Summit Logistics Inc., holds that employers have "an affirmative obligation to ensure that workers are actually relieved of all duty during required meal periods." An opinion from the state Supreme Court is expected in about a year, which will likely resolve the tension between these two cases. Bob commented that he thought "the Supreme Court accepted review of this case because these appellate case decisions reached opposite conclusions." He described the Cicairos precedent as "Draconian" from the employer's perspective and he believes Brinker will be upheld as the correct interpretation of meal break laws.

Although Brinker is not binding case law, the Labor Commissioner, Angela Bradstreet, issued a memo to Department of Labor Standards Enforcement staff that the opinion should be followed in its enforcement of labor laws. However, in another memo sent one day after the Supreme Court's decision to review the case, Bradstreet said Brinker cannot be cited or relied upon due to its pending review. According to Bob, it is standard procedure that the appellate decision of any case under review by the high court cannot be cited and Bradstreet was likely protecting her office from liability by issuing the statement. But he says most courts don't follow the Cicairos decision anyway. Bob added that "It is very badly reasoned; it relies on an opinion by the [former] labor commissioner and only involves rest periods, not meal breaks. The Cicairos opinion, judges say, is not a good decision. And they don't think the California Supreme Court will reach the same decision that Cicairos did."