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