by Michael Kun

 Some were beginning to wonder whether it would ever happen.  After more than two years, the California Supreme Court has announced a hearing date in the much-awaited Brinker v. Superior Court case — November 8, 2011.

Unless the Court takes a detour, California employers should finally know the answer to a question that has long driven California’s billion dollar wage-hour class action industry — must an employer "ensure" that employers take meal and rest periods, or are they only required to make them "available" to employees.

Should the Supreme Court rule that employers need only make them "available," wage-hour class actions will not grind to a halt.  Plaintiffs’ counsel will merely change their allegations to allege that meal and rest breaks were not made “available.”  But most employers should have valid defenses to such claims, and, perhaps just as importantly, they will not need to revise the way they operate.

However, should the Supreme Court rule that employers must "ensure" that meal and rest breaks be taken, virtually every employer that does business in California will be vulnerable to wage-hour actions reaching back four years. 

While it is tempting to do so, employers should not sit back and merely wait for the Brinker ruling.  While employers should hope for the best, they would be wise to prepare for the worst.  Indeed, because the Brinker Court may well rule that meal and rest periods must be "ensured," employers should be prepared to implement new policies and practices the very next day.  Having those new policies and practices drawn up and ready to implement on short notice could help stave off future claims, damages and penalties. 

With any luck, those policies and practices may never be needed.