Ask a California Employer lawyer about the Brinker case, and you will get a roll of the eyes.  The dismay is with the length of the time taken for the Calfornia Supreme Court to reach a decision in the case.  Brinker Restaurant v. Superior Court (Hohnbaum) S166350.  As of this date, we are still waiting.

In the meantime, federal and state courts in California continue to rule either that employers must actively police and enforce meal and break time rules, or that employees may voluntarily waive their break periods.  The latest to do so is a California state trial judge, hearing a 14 day “bench” trial in Driscoll, et al. v. Granite Rock Company, 103426 (filed Jan. 17, 2008). [Tentative Decision 8/25/11]. 

The judge ruled that cement mixer truck drivers elected to skip meal and rest breaks, and that the employer was not legally obligated to require them to take the breaks.  The judge found the employees preferred to receive premium pay, or to go home early, rather than take breaks.  

Critical to the decision was the judge’s findng that the employer had taken “reasonable steps” to inform the employees of their break rights.  He also thought relevant that no employee had filed a grievance that break times were denied.  While it is not clear, it appears that the employer obtained written waivers of the employee’s break rights, and had the freedom to revoke those waivers if they chose.  

This kind of decision concerns me.  In a difficult economy, employees are sensitive to subtle employer pressures.  An employee’s “waiver” may not be as voluntary as it appears on paper.  From the comfortable regions of the High Court, where justices can easily become out of touch with the common working folks, this trial judge opinion may be a preview of the Supreme Court’s eventual ruling in Brinker. “Fighting for the Little Guy”