Employers and employees alike have been long awaiting a decision by the California Supreme Court regarding the issue of whether employers must ensure that employees take meal and rest breaks.  In, Hernandez v Chipotle Mexican Grill, Inc., a recent opinion ordered for publication on October 28, 2010, the Second Appellate District has preempted the California Supreme Court by holding that employers need not ensure that employees take meal and rest breaks but only provide their availability:

"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 Plaintiff relied on Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, to argue that employers must ensure meal breaks are taken. Cicairos involved truck drivers who made a certain number of trips during a workday and were monitored with a system to track drivers.  The system did not include a code for meal or rest breaks.  Cicairos held that there was a triable issue that should be submitted to the jury as to whether the employer permitted the truck drivers to take rest breaks.  With regard to meal breaks, Cicairos notes that employers have an affirmative obligation to ensure that workers were actually relieved of all duty to take their meal breaks.  The Cicairos court, in making its decision, relied on a January 28, 2002 opinion letter by the Division of Labor Standards Enforcement ("DLSE").

The Court reasoned that requiring employers to ensure meal and rest breaks would impose an onerous burden:

“Requiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day."

The Second Appellate District held that Cicairos did not assist Plaintiff.  First, the Court noted that the DLSE has since withdrawn the opinion letter upon which Cicairos was based.  Indeed, the DLSE now states that employers must provide meal breaks but do not have an additional obligation to ensure that they are taken.  Secondly, the Court pointed out that the Cicairos conclusion did not depend on a standard which required employers to ensure meal breaks.  The Court stated that the facts of Cicairos were such that the employer's business practices effectively deprived employees of the ability to take meal breaks.

As the California Supreme Court is set to weigh in on the issue, whether Hernandez remains good law will be decided shortly.  However, the opinion does provide some insight to employers and employees alike as to how the Supreme Court may rule.  You can read the full decision here.