Labor and Employment Law

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

MCLE Self-Study: Hungry for Clarification: Does the Absence of a Recorded Meal Period Give Rise to a Rebuttable Presumption That the Period Was Not Provided?

By Brigham Cheney

Brigham Cheney is a partner at the law firm of Atkinson, Andelson, Loya, Ruud & Romo. He represents employers in all aspects of labor and employment law, including class action lawsuits; traditional labor law; discrimination, harassment, and wrongful termination litigation; trade secret matters; and executive agreements. Mr. Cheney has unique experience in wage-and-hour class action law, having successfully tried two such actions, in addition to successfully litigating numerous others at both trial and appellate levels.

This millennium has seen an increase in California class action litigation alleging meal and rest period violations. The rise in this litigation began in the year 2000, when California’s Industrial Welfare Commission established stiff penalties for such violations. The Legislature codified the new remedy in Labor Code section 226.7, requiring employers to pay employees one additional hour of pay for each workday in which a meal or rest period was not provided. The new law created a smorgasbord of questions for California employers, which courts have attempted to answer over the last seventeen years.

The California Supreme Court answered some of the most significant questions in its 2012 decision, Brinker Restaurant Corp. v. Superior Court.1 But Brinker also created new questions that are still being litigated today. In her concurrence in Brinker, Justice Werdegar raised this key question: Does the absence of a meal period record create a rebuttable presumption that an employer failed to provide the meal period? While there appears to be some disagreement among the courts regarding the answer to this question, this confusion seems easy to address, particularly in class action claims. The only feasible answer to this question is: No.

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