Metropolitan News-Enterprise


Friday, October 29, 2010


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C.A. Tosses Worker Class Action Against Chipotle Mexican Grill


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal has thrown out a class action suit alleging that food restaurant chain Chipotle Mexican Grill violated labor laws by denying employees meal and rest breaks.

Div. Eight, in an opinion published yesterday, ruled that employers must provide employees with breaks, but need not ensure that employees take them.

Former Chipotle employee Rogelio Hernandez sued the company after he was terminated in 2006. He sought to certify a class of thousands of current and former non-managerial employees who worked millions of shifts for Chipotle beginning in July 2003.

Restaurant Closed

Hernandez started working for the company as an hourly employee the preceding year in its Manhattan Beach restaurant, but moved to the company’s Hawthorne location in May 2003 after the Manhattan Beach restaurant closed.

The company employs about 3,000 hourly employees in approximately 130 restaurants across California, and non-managerial employees are paid an average of $8.37 per hour, which includes break time.

Chipotle moved to deny class certification and to strike the class allegations, contending that it met its responsibility under state law to provide employees with meal and rest breaks, even though some employees occasionally failed to record breaks accurately. The company attributed that failure to its policy of paying employees on break, which it said left employees without an incentive to keep accurate records.

Hernandez moved for class certification, admitting that he received all his breaks while working in Manhattan Beach, but claiming that managers in Hawthorne denied or interrupted his breaks. He Hernandez submitted similar declarations by other employees and filed an expert declaration by a statistics professor who concluded—based on Chipotle’s records—that a large majority of employees missed some meal and rest breaks.

Findings Debunked

The company countered that the professor’s findings had no value because he counted employees who might have refused a break or returned early, and employees who sometimes worked as managers; failed to establish a universal policy or practice; and failed to establish why breaks were not taken or were too short.

Los Angeles Superior Court Terry A. Green found that Hernandez established the factors of numerosity, ascertainability of the class, typicality of his claims and adequacy as a class representative. But he denied certification on the grounds that individual issues predominated over common issues.

Green concluded that the California Supreme Court would likely hold that employers were required only to provide employees with the ability to take breaks, not to ensure that employees took them, and he said that individual inquiry was “required to determine if [Chipotle] is liable for denying proper meal and rest breaks to each of its thousands of employees.”

Hernandez appealed, but Justice Elizabeth A. Grimes agreed with Green’s analysis, observing:

“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.”

Trial Judge Upheld

Grimes rejected Hernandez’s argument that Green went too far in addressing the merits of the legal issue while considering class certification, pointing out that the trial court could not otherwise assess whether class treatment was warranted. She also wrote that Green did not abuse his discretion in denying class certification where the evidence suggested that Hernandez would have to present an analysis restaurant-by-restaurant, and possibly supervisor-by-supervisor, in order to prove that Chipotle violated break laws.

The justice noted that time records did not demonstrate on a class-wide basis that the company failed to provide employees with breaks, that Hernandez failed to show that use of a sampling of employee testimony would simplify trial, and that there was substantial evidence of conflicts of interest among the putative class members from employees moving in and out of supervisory roles.

Justice Madeleine Flier and Los Angeles Superior Court Judge Beverly O’Connell, sitting by assignment, joined Grimes in her opinion.

Hernandez was represented on appeal by Michael Rubin, James M. Finberg, Eve Cervantez and Danielle E. Leonard of Altshuler Berzon, and by Matthew J. Matern and Douglas W. Perlman of Rastegar & Matern. Richard J. Simmons and Geoffrey D. DeBoskey of Sheppard, Mullin, Richter & Hampton represented Chipotle.

The case is Hernandez v. Chipotle Mexican Grill, Inc., 10 S.O.S. 6126.


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