Must California employers who provide meal and rest breaks to employees ensure that the employees actually and physically take duty-free meal or rest breaks? The California Court of Appeal recently held that employers need not ensure that their employees actually take their meal or rest breaks. This is a provocative ruling since the same legal question is currently pending before the California Supreme Court.
In Hernandez v. Chiptole Mexican Grill, a former employee of the popular fast food chain filed suit against his former employer and sought class certification for all hourly employees currently and previously employed by Chipotle in its California stores. The employee sought to certify a class of non-managerial California employees who were allegedly denied their legally required rest and meal breaks.
Under California law, employers may not require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission (i.e. for those non-exempt employees covered by a Wage Order). Labor Code section 512 provides that an employer "may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes…" An employer also "may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes…"
The Wage Order applicable to restaurant workers is Wage Order 5-2001 which requires employers to provide employees with a meal period of not less than 30 minutes for a work period of more than five hours. It further states that employers are to authorize and permit employees to take a 10-minute rest break for every four works worked.
Lawsuits for violations California's wage and hour laws, such as for missed meal and rest breaks, are often brought as class actions, whereby the employee who brings the lawsuit seeks recovery on behalf of all employees similarly situated because an employer may have a common practice or policy that affected all employees in the same manner. These types of lawsuits, if successful, also mean lucrative attorney fee awards for the attorneys who represent these employees. Thus, class certification is an important hurdle for both the plaintiff and the employer.
An employee may bring a class action if the question at issue in the lawsuit is one of a common or general interest to numerous persons. Several factors are analyzed in reaching this conclusion, one of which is that common questions of law or fact must predominate over individual questions.
In this case, Chipotle's 130 restaurants in California were managed by a general manager or "restaurateur". All other employees were non-exempt hourly employees entitled to overtime compensation and meal and rest periods under Labor Code section 512 and Wage Order 5-2001. Chipotle had a company-wide policy that managers must provide employees with meal and rest breaks and that employees must take one uninterrupted 30-minute meal break after five hours of work. Chipotle directed employees to record their breaks and also paid employees for the time they took for breaks, including meal periods. Thus, there was no financial incentive for employees to record all breaks accurately.
Accordingly, Chiptole contended that class certification should be denied because there was no question that Chipotle provided, authorized, and permitted employees with meal and rest breaks. The employee, however, contended that class certification should be granted, in part, because the issue was not whether Chipotle provided, authorized and permitted employees with meal and rest breaks, but rather, whether the employees physically and actually took those meal and rest breaks, that is, whether Chipotle ensured the meal and rest breaks were taken. The issue therefore turned on the legal question whether employers may merely provide meal and rest periods or whether employers must physically and actually ensure that employees take those meal and rest periods.
The trial court acknowledged that this legal issue is currently pending before the California Supreme Court in the cases of Brinker Restaurant v. Superior Court and Brinkley v. Public Storage. A decision from the California Supreme Court should be obtained in the coming months. However, the trial court ruled based on its prediction that the Supreme Court will decide that California employers are only required to provide employees with the ability to take breaks, not to ensure breaks be taken. Thus, even if an employee's time record indicated a break was missed, that in and of itself did not establish that Chipotle failed to provide, authorize or permit the employee to take a meal or rest break. For this reason, individual issues predominated and class action treatment of the lawsuit was not appropriate. The employee appealed.
The Court of Appeal affirmed the trial court's decision to deny class certification. In doing so, the Court held that the trial court's analysis of whether an employer must provide, permit, and authorize meal and rest breaks versus ensure that those breaks are taken was correct. The Court stated that it is an employer's obligation to ensure that its employees are free from its control for thirty minutes, not to ensure that the employees do any particular thing during that time. The Court further commented that the employee's position in this case was not practical because it would create absurd incentives that would encourage employees to violate company meal break policy in order to sue the employer and receive extra compensation under California wage and hours laws.
This case may be a preview of things to come from the California Supreme Court when it finally issues its decision in the Brinker Restaurant v. Superior Court and Brinkley v. Public Storage cases. However, this case must be relied upon cautiously. We do not know how the California Supreme Court will rule. It may ultimately rule in a different manner and would therefore make this decision in Hernandez v. Chipotle Mexican Grill bad law. In the meantime, employers are encouraged to take whatever measures reasonable and necessary to provide, and perhaps ensure, that employees are fully relieved of duty during their mandatory rest and meal periods.
Stay tuned to the Personnel File to be notified of the California Supreme Court's decision on this controversial topic in the coming months.
This article was written by Frances Rogers, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore. Ms. Rogers is an Associate in the Los Angeles office and can be reached at (310) 981-2000 or firstname.lastname@example.org. For more information regarding the discussion above or on our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.
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