Plaintiff filed a petition for review to the California Supreme Court in Brinkley v. Public Storage, Inc.  Shortly after the Supreme Court granted review of Brinker v. Superior Court, the Brinkley decision was issued by a lower appellate court (click here to read the opinion in Brinkley v. Public Storage, Inc.).  The appellate court in Brinkley held that:

• Meal periods need not be provided within the first five hours of the shift.
• Defendant must provide meal periods but need not ensure that they are actually taken.
• Defendant did not violate Labor Code section 226.7 because defendant made rest periods available.

This ruling basically agrees with the appellate court’s decision in Brinker. The holdings in Brinkley and Brinker definitely make plaintiff’s attempt to certify class actions in meal and rest break cases much more difficult.  If the standard is that employers only need to provide (and not ensure) meal breaks, then the inquiry into why employees did not take meal breaks becomes more individualized, which means a court probably cannot make these determinations on a class-wide basis.  For example, the court would have to determine if employees voluntarily worked through meal breaks, as opposed to whether the employee was required to work through the breaks. 

I expect the California Supreme Court will issue a grant and hold in Brinkley, making it non-binding on California trial courts until a final ruling is issued by the Supreme Court on similar issues in Brinker v. Superior Court.