It’s been over two years since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court. During that time, employers in California have lacked definitive guidance on whether they must simply provide nonexempt employees with their statutory meal and rest periods, or whether they must somehow ensure that the employees take them.
In the meantime, a California appellate court has waded into the swamp of uncertainty and ruled that it’s enough to provide the breaks (i.e. make them available) regardless of whether employees actually take them. In Hernandez v. Chipotle Mexican Grill, a division of the Second Appellate District affirmed a lower court order denying certification to a class of employees who claimed they did not receive their breaks. If the standard is whether the breaks were provided, the court reasoned, then the inquiry as to why individual employees didn’t take them is too individualized for class-wide treatment.
It certainly seems sensible to require employers to provide breaks, but not insist that they somehow force that they be taken. To that extent, Hernandez v. Chipotle is a step in the right direction. But until Brinker is decided, uncertainty on this issue persists. When will we get such a decision? With oral argument not even scheduled yet, that is still months away. Is it too much to hope that the state Supreme Court would act with a little more urgency to resolve an issue that can have such a great impact on millions of employees, thousands of employers, and hundreds of pending lawsuits?