Plaintiff Rogelio Hernandez brought a putative class action lawsuit for Chipotle’s alleged failure to provide meal and rest breaks to its non-managerial employees pursuant to California Labor Code Section 226.7. The California Court of Appeal held that the Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, precluded class certification because the Labor Code only requires that employers provide, not ensure, that breaks are taken. In the context of this case, the Court held that Chipotle did not have a universal practice with regard to breaks. “Some employees declared they always missed breaks; some declared they received meal breaks but not rest breaks; one declared his meal and rest breaks were combined; some did not declare they were denied meal breaks; and others declared their breaks were delayed.” Even the Plaintiff admitted that Chipotle’s break practices varied. Concluding that class certification was inappropriate, the Court stated, “in order to prove Chipotle violated break laws, Hernandez would have to present an analysis restaurant-by-restaurant, and perhaps supervisor-by-supervisor.

Given the variances in the declarations, Hernandez did not demonstrate a common practice or policy,” which could justify class certification in this case. The Court further noted that the only evidence of a company-wide policy and practice was that Chipotle provided employees with meal and rest breaks as required by law.

To get around this, Plaintiff argued that a simple review of Chipotle’s time records could be used to determine who missed a break and when or, at a minimum, that a statistical sampling of the time records should be used. The Court rejected these arguments, noting that neither the time records nor a sample thereof would show the reason why a break was missed. Moreover, Plaintiff’s statistical expert had not shown a pattern or practice of missed breaks at particular locations, at certain times or during certain seasons or shifts – nor did he offer any explanation of why some employees at the same restaurant had different experiences.

Finally, the Court noted that class certification was inappropriate due to the conflict of interest that existed amongst class members. Because many employees move in and out of supervisory roles, they are charged with the responsibility of providing meal and rest breaks to other employees. Thus, some putative class members may accuse others of violating their right to take meal and rest breaks.