Quick, answer this question: Are you required to ensure that your employees take meal and rest breaks, or is it enough that you make those breaks available? Don’t feel bad if you stumbled—for more than 2 years now, this critical question has remained in flux while the state Supreme Court reviews the issue.

In the meantime, a California court of appeal has issued a ruling on the matter that favors employers. Don’t get too excited just yet, though—the Supreme Court could go either way, and its decision will take precedence.

Fast Food Workers File Class-Action

“Gonzalez” was an hourly employee in the Manhattan Beach Chipotle Mexican Grill from February 2002 until it closed in May 2003, when he transferred to the Hawthorne Chipotle outlet. He worked there until Chipotle terminated him in July 2006.

Gonzalez subsequently filed a lawsuit against Chipotle on behalf of himself and a proposed class of thousands of similarly situated workers. He alleged that the employer violated labor laws by denying employees meal and rest breaks. Chipotle argued that California law required it only to provide employees with meal and rest breaks—that is, to authorize the breaks and permit employees to take them.

The trial court ruled that employers only have to authorize and permit rest breaks. As for meal breaks, it noted that the California Supreme Court is reviewing the issue. The court concluded, however, that the high court is likely to hold that employers don’t need to ensure meals breaks are taken. Gonzalez appealed the ruling.

An Employer-Friendly Ruling

The Court of Appeal reviewed several California Labor Code provisions and the applicable Wage Order. It noted, for example, that Section 512(a) of the Labor Code refers to employers “providing” meal breaks. Similarly, Wage Order 5-2001, which covers restaurant workers, requires employers to “authorize and permit” rest periods and specifies the penalty when an employer fails to “provide” the required rest break.

Gonzalez conceded that employers weren’t required to ensure rest breaks are taken but asserted that a different standard applies to meal breaks. The appellate court disagreed. It held that employers are required only to ensure that its employees are free from its control for 30 minutes—not to ensure that they do any particular thing (such as eat) during that time. The employer’s obligation, the court said, is not to force employees to work through breaks. Hernandez v. Chipotle Mexican Grill, Inc., Calif. Ct. Appeal (Dist. 2), No. B216004, (2010).

Waiting for the Supreme Court

In the fall of 2008, the California Supreme Court agreed to review an earlier case that also addressed the issue of an employer’s meal and rest break obligation. In that case (Brinker Restaurant Corp. v. Superior Court) a different California appeal court had held that the employer must make the meal break available and not impede, discourage, or dissuade employees from taking it. According to the court, employers are not, however, required to ensure that employees take breaks.

Shortly after the Supreme Court granted review, the state Division of Labor Standards Enforcement (DLSE) issued a memo to its staff indicating that it will rely on the language in Labor Code Section 512(a), the Wage Orders, and existing California Supreme Court and courts of appeal and federal court decisions interpreting those provisions. According to the memo, the DLSE finds “compelling support” in those sources for the position that employers need only provide the breaks.

Better Safe than Sorry

Despite this latest court of appeal ruling, there’s no guarantee that the state Supreme Court will come down on employers’ side. Until the issue is settled once and for all, your best bet is to take a conservative approach to meal and rest breaks. That means taking the following steps:

1. Detail your meal and rest break policy in the employee handbook. Use strong language. For example, say: “Employees are entitled and required to take the following breaks ...”
2. Review your internal procedures and remove any impediments to employees taking their required breaks, such as offering productivity bonuses, which may deter workers from taking breaks.
3. Require employees to record the stop and start times of their meal breaks on time cards or time sheets. Review time cards to ensure that meal breaks run for the correct amount of time.
4. Require employees to sign off on their time cards or time sheets, acknowledging that they actually took their meal periods of at least 30 minutes and were provided time to take rest periods.
5. Employees who repeatedly work through their meal or rest breaks should be disciplined, as they would be for any other policy violation (but don’t forget that you’re still required to pay employees for all time worked, even if the time was not authorized).

Practice Tip

Under California law, employers may not require employees to work through meal periods or in any way discourage or prevent employees from taking meal or rest breaks.

This article previously appeared on HR.BLR.com.