Does California law require employers to merely provide employees a meal break, or must they also ensure that such breaks are taken? For well over two years now, employers have waited for the California Supreme Court to decide a growing list of cases it has agreed to review, starting with Brinker Restaurant Corp. v. S.C, 80 Cal. Rptr. 3d 781 (Cal. Ct. App., July 22, 2008), which supports the idea that meal breaks need only be provided, not ensured.

Last October, in Hernandez v. Chipotle Mexican Grill, the California Court of Appeals issued yet another decision rejecting the idea that employers must ensure meal breaks are taken. While the court initially issued Hernandez as an unpublished decision, Seyfarth Shaw and others successfully petitioned for its publication. The request was granted on October 28, providing employers much needed guidance on the parameters of California’s meal break standard. This precedent was short lived, however: on Wednesday, the California Supreme Court granted review of Hernandez and depublished the appellate court decision.

Hernandez was a sign that the California Court of Appeal was ready to decide this issue despite the pendency of Brinker. While acknowledging that Brinker and others were pending before the California Supreme Court, the Hernandez court speculated that the Supreme Court will “likely” reject the “ensure” requirement. The court went on to definitively hold that “employers must provide employees with breaks, but need not ensure employees take breaks.” To require otherwise, the court reasoned, would be “impractical,” placing “an undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day.”

The Supreme Court’s grant and hold of Hernandez is significant, but not all that surprising given the similar treatment of other appellate cases on this issue. Whether the decision in this instance is based on the Court’s desire to lock the issue down until it decides either way, or whether it signals that Hernandez was simply wrong, remains to be seen. In the meantime, employers will have to wait a little longer to find out what the meal deal is in California.