California wage and hour law often mandates the impossible. As one example, employers must provide non-exempt employees with completely uninterrupted meal and rest periods of certain durations beginning by specific times in their shifts. Minor violations (e.g., returning a few minutes early or starting a meal period a few minutes late) can lead to major damages. Further complicating compliance, some employees do not want to take meal and rest periods as prescribed by the California legislature. An employee may prefer to deal with a customer issue or continue working for tips during a scheduled meal period. An employee may prefer to continue working so as to finish earlier and get home. An employee may be able to eat during a slow period without having to clock out for an unpaid 30 minutes. In some cases, an employee may even clock in and out “by the book” in order to hide non-compliance.

Given the friction between the technical requirements of California law and the practical realities of the workplace, it is not surprising that the plaintiffs’ class action bar has swarmed to meal and rest period claims. A pivotal dispute in these cases is whether employers must ensure that employees take meal periods, or whether employers need only allow employees to do so. Two Court of Appeal decisions -- Brinker Restaurant v. Superior Court and Brinkley v. Public Storage -- ruled in the employer’s favor, but now have been pending on appeal before the California Supreme Court for over two years! While Supreme Court review is pending, the Court of Appeal decisions may not be relied upon as authority. Additionally, many lower court opinions are unpublished, and unpublished decisions may not be cited in California State courts.