Labor and Employment Law

Ca. Labor & Emp't Rev. May 2017, Volume 31, No. 3

Brinker: The "Werdegar Presumption" Five Years Later

By Michael Singer

Michael D. Singer is managing partner of Cohelan Khoury & Singer in San Diego, wage and hour amicus co-chair and liaison for the California Employment Lawyers Association, and a contributing author of CEB’s practice guide, California Wage and Hour Law: Compliance and Litigation (2010).

Five years ago, the California Supreme Court issued its seminal decision in Brinker v Superior Court,1 defining an employer’s substantive obligations in providing compliant meal periods. One major takeaway from the opinion is that employees have the option of declining to take a meal period. The consequence of this choice is to render ambiguous an employer’s time records showing a missed, late, or short meal period that might give rise to a violation of Labor Code § 226.7, entitling the employee to an hour’s premium pay. If the employee waived a compliant meal period, no liability results.

The author of Brinker, Associate Justice Kathryn Mickle Werdegar, wrote a separate concurring opinion discussing the procedural aspects of proof associated with meal period time records. Justice Werdegar made it clear at the outset that her concurrence did not constitute precedent: "I write separately to emphasize what our opinion does not say."2 In the context of employers’ reporting obligations with respect to maintenance of accurate records, she wrote: "If an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided."3 She underscored this point by adding that employees need not disprove they waived the meal period in order to establish a violation.4

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