In Hernandez v. Chipotle Mexican Grill, Inc., 2010 Cal. App. LEXIS 1853 (2010), the California Court of Appeal issued a decision addressing the issue currently before the California Supreme Court: whether employers must ensure that employees take required meal and rest breaks, as opposed to simply providing the opportunity to take required breaks. California employers, especially retailers, have been waiting anxiously for the Supreme Court to address this issue in Brinker v. Superior Court of San Diego. While there are many outstanding cases waiting for this ruling, many judges have been reluctant to issue a decision while Brinker is pending.
However, in Hernandez, the Court of Appeal sided with federal precedent in holding the employers need only provide the opportunity to take required breaks. This opinion remains good law, at present. Of course, the Supreme Court’s ruling in Brinker will either affirm or strike down this ruling.
Brinker remains the “case to watch,” for at least two reasons. First, retailers will likely be saddled with more onerous monitoring and liability if they are required to ensure breaks are taken rather than merely provide break time. Second, however, an “ensure” rather than “provide” standard may make class action treatment more appropriate in multi-plaintiff break cases. Courts may be more likely to find whether an employer simply provided break time presents a common question of fact for all plaintiffs, as opposed to the question whether the employer required each individual employee to take all required breaks, which may present individual factual issues.