In Hernandez v. Chipotle Mexican Grill, Inc., (— Cal.Rptr.3d —-, Cal.App. 2 Dist., October 28, 2010), a court of appeal considered whether employers are required to ensure that employees take the breaks provided by the employer. The court held that an employer need only provide its employee with breaks and does not have to ensure that the employee actually takes the breaks.
Rogelio Hernandez ("Hernandez") brought a lawsuit against his former employer, Chipotle Mexican Grill ("Chipotle"), alleging that Chipotle violated labor laws because it denied its employees meal and rest breaks. Hernandez was an hourly employee when he worked for Chipotle. He worked at the Manhattan Beach restaurant from February 2002 until May 2003 and then started working at the Hawthorne restaurant, where he worked until Chipotle terminated his employment in July 2006.
All employees at Chipotle restaurants are hourly workers who are entitled to earn overtime compensation except for those in the salaried position of "restaurateur." Although each restaurant is managed by a restaurateur or general manager, some Chipotle "employees move in and out of supervisory roles" by performing such tasks as scheduling meal and rest breaks. Chipotle's written corporate policies require that mangers must provide employees with meal and rest breaks. The break policy provides that employees may not self-initiate breaks and are prohibited from skipping breaks. An employee must take one uninterrupted 30-minute meal break if he or she works over five hours or two 30-minute meal breaks if the employee works over 10 hours. Managers must provide an employee with a 10-minute rest break if the employee works for three and one-half hours or more and must provide two 10-minute rest breaks if the employee works more than six hours. Although Chipotle directs its employees to record their breaks, there is no financial incentive for the employees to record all of their breaks accurately because "Chipotle pays employees for the time they take for breaks even though they are relieved of duty and free to leave the restaurant." Chipotle provides its employees comfortable break facilities and free food and beverages to encourage employees to take their breaks.
Hernandez asked the court to certify his lawsuit as a class action. Hernandez argued that not only is Chipotle required to provide meal breaks, it is obligated to ensure that its employees actually take the meal breaks. He presented evidence that 92% of Chipotle employees had missed at least one meal break and that all Chipotle stores had missed at least one meal break. As for his own experience, Hernandez testified that, except for one occasion, he always received his meal and rest breaks while he was employed by the Manhattan Beach restaurant. However, he claimed that while he worked at the Hawthorne restaurant, his managers interrupted his meal breaks two or three times per week.
The trial court denied class certification because the employees' individual issues predominated over the issues common to the alleged class. The court also found that a class action was not superior to individual actions by each employee.
The court of appeal affirmed the order of the trial court. Labor Code section 226.7, subdivision (a) provides that an employer shall not “require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” Labor Code section 512, subdivision (a) provides “employers must provide employees with meal periods of not less than 30 minutes if they work shifts of more than five hours per day and a second 30-minute meal break if they work shifts longer than 10 hours per day.” The Industrial Wage Commission (“IWC”) Wage Order 5-2001, which governs restaurant workers, requires that employers provide their employees with a meal period of not less than 30 minutes if the employee’s work period is more than five hours. Also, pursuant to Wage Order 5-2001, “employers are to authorize and permit employees to take a 10-minute rest break for every four hours worked.” Employers must keep accurate records of meal breaks but are not required to do so for rest breaks.
The court of appeal rejected Hernandez’s contention that employers are required to ensure that employees take their meal breaks. Under the Labor Code and the IWC Wage Order, employers may not pressure employees to skip their breaks, decline to schedule breaks, or establish a work environment that discourages or prevents an employee from taking breaks. However, the court declined to extend the requirement that employers provide breaks to also require that employers ensure that their employees take meal breaks.
There are numerous requirements that must be met before a group of plaintiffs is allowed to proceed as a class in a class action lawsuit. All of the requirements were not met in this case. Specifically, the court found that individual issues predominate over issues common to Chipotle employees. The evidence showed that Chipotle did not have a universal practice in regard to how supervisory personnel handled breaks. Some employees stated they always missed breaks, some stated they received meal breaks but not rest breaks. Seventy-three employees declared they had always been provided breaks. Even Hernandez stated that when he worked at the Manhattan Beach restaurant, he had always been provided with an opportunity to take his breaks, except for on one occasion. The court found, “The only evidence of a company-wide policy and practice was Chipotle’s evidence that it provided employees with meal and rest breaks as required by law.”
The court further found that there was a conflict of interest among class members because some Chipotle employees move in and out of supervisory roles and at different times have the responsibility to provide rest and meal breaks for themselves and other employees on a shift. The result is that some potential class members may be put in the position of accusing other potential class members of violating their break rights.
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