UPDATE: Court Of Appeal Again Holds That Employers Need Not Ensure That Employees Take Breaks

A court of appeal recently reconsidered the issue of whether an employer is required to ensure that employees take the breaks provided to them.  After the Supreme Court remanded a case for reconsideration, the court of appeal once again held that an employer need only provide its employee with breaks and does not have to ensure that the employee actually takes the breaks.  (Hernandez v. Chipotle Mexican Grill, Inc., (— Cal.Rptr.3d —-, Cal.App. 2 Dist., August 21, 2012).


Rogelio Hernandez (“Hernandez”) alleges Chipotle Mexican Grill (“Chipotle”) violated labor laws because it denied its employees meal and rest breaks. Hernandez was an hourly employee when he worked for two Chipotle restaurants, one in Manhattan Beach and another in Hawthorne.  Employees at Chipotle restaurants are hourly workers who are entitled to earn overtime compensation, except for those in the salaried position of “restaurateur.”  However, some Chipotle “employees move in and out of supervisory roles” by performing such tasks as scheduling meal and rest breaks. 

According to Chipotles’ written corporate policies, managers must provide employees with meal and rest breaks.  The break policy provides that employees are not allowed to self-initiate breaks and they cannot skip breaks.  The policy states that an employee must take one uninterrupted 30-minute meal break if he or she works over five hours and two breaks if he or she works over 10 hours.  If an employee works three and one-half hours or more, managers must provide him or her a 10-minute rest break and if the employee works more than six hours, the manager must provide two 10-minute rest breaks.  Chipotle requires its employees to record their breaks but there is no financial incentive for the employees to do so 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 brought a lawsuit against Chipotle and asked the trial court to certify his lawsuit as a class action.  Hernandez asserted that not only is Chipotle required to provide meal breaks, it must ensure that its employees actually take the meal breaks.  He presented statistical evidence from a professor that 92% of Chipotle employees had missed at least one meal break and that all Chipotle stores had missed at least one meal break.  Although  Hernandez testified that, except for one occasion, he always received his meal and rest breaks while he was employed by the Manhattan Beach restaurant, 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.  Hernandez appealed.  The court of appeal affirmed the decision of the trial court.  The Supreme Court granted review of the case but remanded the case for the court of appeal to reconsider in light of the Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  For a discussion of the referenced Brinker decision, please see our Legal Alert entitled, “Employers are Required to Provide Meal and Rest Periods but Not Required to Ensure That Employees Utilize the Meal and Rest Periods”, April 12, 2012.



After reconsideration, the court of appeal once again affirmed the order of the trial court.  The appellate court concluded that employers need only provide employees with breaks.  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 are required to keep accurate records of meal breaks but are not required to do so for rest breaks. 

Hernandez asserted that not only must employers provide meal breaks, they must make sure that employees take those breaks.  The court had previously concluded that although 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, employers are not required to ensure that their employees take meal breaks.  The court noted that the Supreme Court’s holding in the Brinker case had resolved this issue contrary to the position taken by Hernandez. 

In Brinker, the Supreme Court held that an employer satisfies its obligation to provide a meal period to its employees “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break and does not impede or discourage them from doing so.”  An employer does not have to “police meal breaks and ensure no work thereafter is performed.”  According to the Brinker decision, “[b]ona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay . . . .”

The court found that the requirements to proceed as a class action were not met in this case. The evidence did not show on a classwide basis that Chipotle failed to provide its employees with breaks.  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 of appeal found that there is substantial evidence to support the trial court’s decision to deny class certification and affirmed the trial court’s order.


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Bruce A. Scheidt, Laura Izon Powell or David W. Tyra | 916.321.4500