Brinker: the "werdegar Presumption" Five Years Later

• Jurisdiction: California,United States
• Author: By Michael Singer
• Publication year: 2017
• Citation: Vol. 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

The unremarkable proposition stated by Justice Werdegar that an employer's records may establish a prima facie basis to show potential violations as to a group of employees for purposes of class action procedure has been subsequently adopted by courts of appeal.⁵

Justice Werdegar's presumption has also been mentioned favorably in numerous other opinions.⁶

Some practitioners are suggesting the language in Brinker establishing a presumption of accuracy should be entirely rejected. In so doing, they essentially ask that the records an employer is required by law to maintain accurately be subject to a presumption of inaccuracy. They argue that the same records employers use for payroll, taxes, worker's compensation premiums, and other reporting requirements...