The obligation to provide rest and meal periods has vexed California employers since its inception. While few employers would quibble with the notion that employees should have reasonable time off during work for breaks and meals, the language of the applicable wage order and its interpretation by some courts may create severe problems and class action claims. Central to this issue is the question of whether an employer need only make meal periods available, or whether it must actually ensure that employees take them. Unfortunately, although the California Supreme Court accepted review of this question in Brinker Restaurant v. Superior Court ( Oct. 22, 2008, S166350), it has, as of the date of this posting, yet to issue any decision. Some courts, most notably Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949 (2005), have held that the employer must, in fact, ensure that employees actually take their meal breaks. Most courts, following the lead of the court of appeals in Brinker, take the more sensible view that an employer need only make the time available, and the California Department of Labor Standards Enforcement has retreated from an earlier view requiring the actual taking of meal breaks. While the majority of California courts now follow the Brinker view, a significant minority still require employers to ensure that meal periods are in fact taken. In the class action context, the resolution of this question is critical. Most courts certifying meal break cases follow the Cicairos view (i.e. that the employer must insure that the meal period is actually taken). Few, if any, cases that adhere to Brinkerview (that breaks need only be made available) ultimately certify such cases. Those courts reason that because they do not find a per se rule requiring that breaks need to be taken, they must engage in an employee-by-employee, day-by-day analysis, rendering class treatment inappropriate. Most recently, in Hernandez v Chipotle Mexican Grill Inc.pdf the plaintiff brought a putative class action on behalf of the 3,000 or so hourly California employees of the Chipotle fast food chain. He contended that despite corporate policies encouraging or mandating the taking of meal periods, employees frequently did not do so. He submitted a statistical study in support of his argument that purported to show that employees often did not take their meal time. Both parties moved the court with respect to the issue of certification. The court first analyzed the issue of whether the employer must ensure that meal periods be taken, and ultimately reached the same conclusion as the Brinker court had, that the employer need not force the employees to take them. The court noted the practical difficulties in enforcing meal periods for an employer with far-flung operations. It also quoted the decision of the United States District Court for the Northern District of California in White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. 2007), for the proposition that a contrary rule would “create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws.” After holding that there was no rule requiring employers to force employees to take their breaks, the court turned to the trial court’s refusal to certify the case. Among other things, it found that resolution of the claims would require an examination of every restaurant and possibly the management of every supervisor to determine why meal breaks had not been taken. Indeed, it found that the only common policy was one of requiring the taking of breaks. Thus, it concluded that the trial court did not abuse its discretion in refusing to certify the case. The bottom line: Unless the California Supreme Court reverses Brinker, the growing rule appears to be that classes alleging break and meal period violations should generally not be certified because such claims almost inherently will require an individualized inquiry.