While California employers continue to await a definitive ruling from the California Supreme Court, the California Court of Appeal this week issued a ruling determining that employers need only provide employees with meal and rest breaks and need not necessarily ensure that employees take them.

In Hernandez v. Chipotle Mexican Grill, Inc., 2010 WL 4244583 (Cal. Ct. App. 2010), the Court of Appeal affirmed the trial court’s refusal to certify a class of approximately 3,000 employees pursuing claims for meal and rest break violations under the Labor Code. The Court found, based on its interpretation of Labor Code section 512 and the applicable Industrial Welfare Commission Wage Orders, that employers are not obligated to ensure that employees take meal and rest breaks. As a result, the Court held that class certification was inappropriate because individualized questions regarding the break periods of each employee would predominate over questions common to the entire class. In particular, the plaintiff could not show a widespread pattern or practice on the part of the employer prohibiting employee breaks, and time records showing that Chipotle employees did not take meal breaks were not indicative of a meal break violation because some employees often failed to report their break periods accurately. Instead, determining whether a violation occurred would require an inquiry into the meal and rest break practices of each individual employee.

The holding in Chipotle is similar to the holdings in Brinker v. Superior Court and Brinkley v. Public Storage, which are both currently pending before the California Supreme Court. In each of those cases, the Court of Appeal likewise ruled that the employer must only authorize and provide breaks to employees but that it need not ensure that breaks were actually taken. Brinker and Brinkley have been fully briefed since October 8, 2009, yet we still do not know when the Supreme Court will finally decide this issue, as oral argument has not yet been scheduled.

While Supreme Court review of Chipotle will likely be sought by the plaintiff, unless and until a petition for review is granted, Chipotle remains citable and binding precedent, echoing the Division of Labor Standards Enforcement’s Opinion Letter of October 23, 2008 declaring "employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken."