Oral argument was finally held in Brinker last week. Wagering on appellate court outcomes after listening to oral arguments is not a smart use of gambling funds in most instances, and it seems dangerous here as well. But most assessments of the argument seem to agree on two things. First, the consensus is that the Justices appeared to direct a more critical set of questions to plaintiffs' counsel, Kimberly Kralowec, on the issue of whether employers must "ensure" that meal periods are taken, rather than simply "provide" employees with an opportunity to take a meal period. Second, on the issue of when a meal must occur, at least Justice Liu appeared to take exception with an interpretation that would allow an employer to schedule meal period after more than five hours of work.
Here are a few examples of coverage of or opinions about the oral argument:
- Howard Mintz, California Supreme Court hears arguments in showdown over worker rest and meal breaks (November 8, 2011) San Jose Mercury News
- Alison S. Hightower, What is the duty to "provide" a meal period? Oral argument before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (November 8, 2011) Lexology
- Kathy Robertson, Supreme Court wages hearing focuses on enforcing meal breaks (November 8, 2011) Sacramento Business Journal
In something approximating 90 days we will finally know the answer to this great mystery.