Seyfarth Synopsis: Employment-related cases pending before the California Supreme Court concern various questions that sometimes seem technical, but the answers they elicit will have big consequences. Questions raised by the current crop of cases include standing to sue, the availability of certain claims and remedies, federal preemption of California laws, what counts as compensable time

Seyfarth Synopsis: New statutory obligations for California employers in 2018 will include prohibitions on inquiries into applicants’ salary and conviction histories, expanding CFRA to employees of smaller employers, expansion of mandatory harassment training to include content on gender identity, gender expression, and sexual orientation, and new immigration-related restrictions and obligations.

California Governor Jerry Brown spent

By John R. Giovannone and Brandon R. McKelvey

When the California Supreme Court issued its landmark decision in Brinker last year, employers were excited about the apparent legal clarity it offered in the area of meal and rest breaks.  We finally had our explanation of what an employer must do to “authorize and permit” meal and rest breaks, as Brinker succinctly declared:  “an employer is obligated only to ‘make available’ meal [and rest] break periods, with no responsibility for whether they are [actually] taken. [But] the employer is not obligated to police meal [and rest] breaks and ensure no work thereafter is performed.” 

In Brinker’s immediate wake, employers could feel confident in their meal and rest break rule compliance, so long as they (a) relieved employees of all duty, relinquished control and permitted them a reasonable opportunity to take breaks and (b) did not impede or discourage employees from taking breaks. 

But now, the breadth of Brinker’s clarity is under attack.  In this blog series, The Battle After Brinker, we will explore the current controversy over Brinker and what it means.  Since Brinker was decided, the battleground has shifted from the text of the Wage Order to the text of Brinker’s explanation.  While we now know that the employer’s duty is not to police breaks so as to ensure that they are actually taken, disputes can still arise over the meaning of an employer’s duty to make breaks available and the ramifications of that duty on the employer’s break policies and on the viability of meal and rest period class actions
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