On Nov. 8, the California Supreme Court heard oral argument in Brinker Restaurant Corporation, et al. v. Superior Court (Hohnbaum) (Sup. Ct. Case No. S166350). The case raises a variety of frequently litigated and highly contested issues, including the scope of an employer’s meal period and rest break obligations, and whether a trial court must determine the elements of a plaintiff’s claim before deciding whether it may proceed on a class-wide basis. Unsurprisingly, a majority of the oral argument was focused on the meal period issues.

WORKERS’ Opening Argument

Justice Joyce Kennard began by asking whether the different meal-period language in Labor Code §512 (entitling employees to meal periods) and Wage Order 5-2001 (applicable to the parties in this case) could be harmonized and, if not, which should control. Kimberly Kralowec, representing the real party in interest workers, said that the provisions could be harmonized, but if the court were to conclude otherwise, the wage order could provide greater protections to employees than the statute. Kralowec argued that Labor Code §226.7 was the most recent legislation addressing meal periods, and it “specifically incorporated” and “codified” the meal period standards from the wage orders. Kralowec explained that because §226.7 uses the same word “provide” with respect to both meal periods and rest breaks, which have different standards in the wage orders, the Legislature must have intended to use “provide” as shorthand to codify the wage orders’ standards.

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