Less than three months ago, I was lamenting the continuing uncertainty over whether California employers may simply make meal and rest breaks available or whether they must somehow ensure that they’re taken. Even then, it had been over two years since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court. Still, there was a glimmer of hope when an appellate court — Hernandez v. Chipotle Mexican Grill — issued a published decision holding that it was enough to provide the breaks (i.e. make them available).
Well, the uncertainty has increased. The California Supreme Court has granted review in Hernandez, thereby rendering it no longer citable as precedent. Is this surprising? Not really. But as I’ve said before, for an issue that affects so many employers, employees, and pending lawsuits, some definitive guidance would be helpful. Look for it in the second half of 2011.