By Michael Kun

Employers with operations in California continue to await a ruling from the California Supreme Court on the question of whether employers must "ensure" that meal and rest breaks are taken, or merely make them "available."

The issue has long been before the Court in the similarly-named Brinker and Brinkley cases, and will turn largely on a single question: what does the word "provide" mean.

This, of course, is much more than a minor semantic issue. The ultimate decision about what "provide" means will have a dramatic impact upon the wave of wage-hour class actions that have plagued California employers for more than a decade. A pro-employee decision -- that "provide" means "ensure" -- will surely lead to a new, massive wave of meal and rest break class actions. A pro-employer decision -- that "provide" means to make "available," and no more than that -- could slow the filing of meal and rest break class actions and reduce their value. Until some legislators in Sacramento push for new legislation that expressly states that the breaks must be "ensured," that is.

From White v. Starbucks to Brown v. FedEx, the federal courts in California have uniformly issued pro-employer decisions on this issue, holding that employers need only make these breaks "available," and need not "ensure" that employees actually take the breaks. If employees choose not to take the breaks, or take late or short breaks, there is no liability for the employer.

The uniform rulings by the federal courts have made it preferable for employers to be in federal court. While the California state courts reached the same conclusion in Brinker and Brinkley, neither case may be cited. Both cases have been depublished while the Supreme Court considers them.

The only other state court decision addressing this issue has been Cicairos v. Summit Logistics, Inc., which concluded that meal breaks in fact must be ensured. But the Court reached that conclusion in reliance upon an opinion offered by a California state agency -- an opinion that the agency has abandoned.

Without a case to cite in state court, and with many state court judges reluctant to rule on the issue while Brinker and Brinkley are pending, employers in meal and rest break class actions have been largely stymied.

Until now perhaps. On September 30, 2010, the California Court of Appeal issued an unpublished decision in Hernandez v. Chipotle Mexican Grill, Inc., B216004. Agreeing with the federal courts and distinguishing Cicaios, the court concluded that breaks need only be made "available," affirming the denial of class certification as a result.

The decision may ultimately prove to be an unimportant one. It is unpublished, which means that it can only be cited under limited circumstances. That may change as employers and management-side employment lawyers are likely to petition for its publication. Whether it is published or not, it should not surprise anyone if the plaintiffs seek certiorari and ask that the case be considered with Brinker and Brinkley, or take other procedural steps to effectively stay the decision until Brinker and Brinkley are finally decided. And, ultimately, the Supreme Court is going to have the final say.

That said, the decision does signal that the Superior Courts and the Courts of Appeal are not going to sit on their hands indefinitely, waiting for the rulings in Brinker and Brinkley before they issue their own opinions on this important question. And, in the short term at least, employers may have a decision they can cite in state court proceedings to attack the certification or merits of break claims.

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