California Wage & Hour Update

The California Supreme Court has, not surprisingly, granted review of Hernandez v. Chipotle, 189 Cal. App. 4th 751 (2010). In the Chipotle case, the appellate court denied certification of meal and rest period claims. California law requires that employers “provide” meal periods. For several years, California’s Department of Labor Standards Enforcement and various courts took the position that “provide” means “ensure.” Two years ago, the Fourth Appellate District for the California Court of Appeal resolved the debate in Brinker Restaurant Corp. v. Superior Court, 80 Cal. Rptr. 3d 781 (Cal. App. 2008), and declared that “provide” means that employers must make meal periods available—they are not required to ensure that employees take their 30-minute uninterrupted meal periods. But, the California Supreme Court granted review and has not issued a decision in two years, leaving California employers in limbo. It also took review of a similar case that followed Brinker, Brinkley v. Public Storage.

In a positive move for employers, the Second Appellate District for the California Court of Appeal stated in Chipotle that the California Supreme Court should agree with the Brinker court, and decide that the obligation to “provide” a meal period means to make it available, and not to ensure that it is taken. In recent months, the California Supreme Court has granted review of a number of meal and rest period cases, while staying briefing pending a decision in Brinker – Brookler v. Radioshack and Faulkinbury v. Boyd & Associates. Now, granting review of the Hernandez v. Chipotle case, the California Supreme Court has a battery of meal period cases to decide: Brinker, Brinkley, Brookler, Faulkinbury, and Chipotle. Hopefully, with the new sitting Chief Justice installed, decisions will come down in the next six months that will provide employers with more guidance.

If you have questions regarding this alert, please contact one of the Winston & Strawn LLP Labor & Employment Relations partners listed below.

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