What does it mean to “provide” employees with required meal and rest breaks? That employers must “ensure” or “force” employees to take them, or simply make them “available” to employees? While the law is relatively settled that employees need only be given the opportunity to take rest breaks, it is not clear whether this same standard applies to meal periods. Indeed, California employers eagerly await the California Supreme Court’s determination of this question in Brinker Restaurant v. Superior Court (Hohnbaum) and Brinkley v. Public Storage. In the interim, the Court of Appeal recently decided a case addressing the meal period issue, Hernandez v. Chipotle Mexican Grill, Inc.
In Hernandez, the court dismissed a class action lawsuit alleging the chain violated state labor laws by denying employees meal and rest breaks. The court decided that an employer does not violate the law when it gives employees the opportunity to take their rest and meal breaks, but does not compel them to do so. This opinion is good news for California’s employers who struggle with the task of forcing employees to take their meal breaks—often against their will—to avoid costly penalties under the Labor Code. Employers should avoid the temptation to change their practices and policies at this point, though, because the plaintiffs likely will appeal.
Also, the state Supreme Court will ultimately have the final say on how far employers must go to “provide” employees with meal breaks, and could decide Brinker/Brinkley differently. Because there is no deadline for the Supreme Court to act, for now employers should “assume the worst” and work to ensure employees actually take their meal periods.
California’s Meal and Rest Break Laws
The Labor Code and Industrial Welfare Commission (“IWC”) Wage Orders required employers to “provide” rest and meal periods. Labor Code section 512(a) contains the basic meal period requirement: “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…” And, “an employer may not employee 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 IWC Wage Orders generally contain similar requirements.
Rest periods are mandated in section 12 of the Wage Orders: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted, as hours worked, for which there shall be no deduction from wages.”
When employers do not comply with the meal or rest period laws, Labor Code section 226.7 (and the applicable sections of the Wage Order) require employers to pay a premium wage: “If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.” The premium is due only when employers do not “provide” their employees with meal or rest periods.
The Lower Court’s Decision in Hernandez
Hernandez was an hourly employee in one of Chipotle’s Southern California restaurants until 2006, when he was fired. Subsequently, Hernandez sued Chipotle on behalf of himself and a putative class of approximately 3000 similarly situated, non-managerial employees, claiming the company violated state meal and rest break laws by not “providing” him with rest and meal breaks. While Hernandez conceded that California employers need only make rest breaks available to their employees, he argued in favor of a different legal standard for meal breaks—that employers are obligated to actually “ensure” such breaks are taken.
Chipotle argued that it complied with applicable law because its policies required employees to be given meal and rest breaks, and prohibited employees from skipping them. Chipotle also paid its employees, like Hernandez, for all meal and rest breaks, even though payment for meal breaks is not required by law. Hernandez countered by contending that his meal and rest breaks, and the breaks of other employees, were interrupted or denied altogether.
The trial court denied class certification based on other court decisions finding that employers must simply make meal and rest breaks “available.” Under that standard, a class action would be inappropriate because the court would have to analyze the facts surrounding each employee’s missed break to determine whether the employer actually “provided” a break, and the point of a class action is to avoid such individual determinations. Hernandez appealed the decision.
The Court of Appeal’s Decision
On review, the Court of Appeal agreed with the trial court, concluding that Hernandez failed to meet the requirements for a class action. Central to this decision, the court concluded that while employers may not force employees to work through their meal breaks, they also need not compel employees take them. The court based its decision on its interpretation of the plain meaning of the word “provide” as used in California Labor Code Section 512 and the Wage Orders. “Provide,” in the court’s view, means only “to supply or make available,” and not that “employers must ensure employees take meal breaks.”
Notably, the court rejected Hernandez’s reliance on an earlier Court of Appeal decision, Cicairos v. Summit Logistics. In that case, the court held employers have “an affirmative obligation to ensure that workers are actually relieved of all duty” during meal periods. The Hernandez court limited Cicairos to its facts, where employees were effectively denied the opportunity to take duty-free meal periods because of the nature of their work and the employer’s practices. Also, the court noted that Cicairos decision was based in part on an opinion letter issued by the California Labor Commissioner and subsequently withdrawn.
The court recognized that requiring employers to force their employees take meal breaks would be impractical and place an “undue burden on employers”—especially for large employers. The court also noted that to decide otherwise would create “perverse incentives” for employees to violate employer policies to recover the “premium pay” required by Labor Code section 226.7.
Based on its interpretation of the term “provide,” the court upheld the dismissal of Hernandez’s class claims. The court reasoned that Chipotle did not have a universal practice regarding employee breaks. The evidence showed employees missed meal and rest breaks with varying degrees of frequency, depending on location, management style, volume of business and other factors. So, the claims could not practically be tried on a class-wide basis, but would instead require “thousands of mini-trials.”
The court rejected Hernandez’s argument that Chipotle’s employee time records proved employees did not receive meal and rest periods, and therefore “mini trials” would not be necessary. The court relied on evidence indicating the time records were unreliable because many employees did not clock in and out for meal and rest periods given Chipotle’s practice of paying for all employee breaks. So, even if an employee’s time record showed a missed break, that did not necessarily establish Chipotle failed to provide the employee with the opportunity to take one.
Practical Tips After Hernandez
While Hernandez is good news for employers, there is still uncertainty regarding how the Supreme Court will interpret the obligation to “provide” meal periods. Employers should not adopt the “make available” standard in Hernandez without understanding the risk that the Court could see things differently.
To avoid liability, employers should consider the following best practices:
- Develop comprehensive rest and meal break policies. For the time being, assume an employer is required to “ensure” employees actually receive their meal periods, which includes being relieved of all work duties during breaks.
- Include rest and meal break policies in handbooks/manuals and require employees to acknowledge the policies in writing.
- Post rest break and meal period policies in appropriate locations, including employee break areas.
- Require employees to promptly report any interference with their ability to take their rest and meal breaks, and take appropriate disciplinary action against those who prevent or dissuade employees from taking their rest and meal breaks.
- Review non-exempt employees’ time records to ensure they are accurately reporting their meal breaks, and follow up with those who fail to do so.