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?

• Jurisdiction: California,United States,Federal
• Author: By Brigham Cheney
• Publication year: 2017
• Citation: Vol. 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.

The Brinker Concurrence and Birth of the "Rebuttable Presumption"

In her Brinker concurrence, Justice Werdegar, joined by Justice Liu, stated:

Employers . . . have an obligation both to relieve their employees for at least one meal period for shifts over five hours . . . and to record having done so. . . . 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.²

Plaintiffs' attorneys have made much ado about this statement. But it is, frankly, much ado about nothing. "A concurring opinion is not the decision of the court."³ And the presumption does not appear in the majority opinion (which, notably, Werdegar also authored). Thus, a majority of the justices of the supreme court rejected it, and—as a settled principle of law—it has no validity as an opinion of the court.⁴

In spite of this, many courts have expressed their agreement with Justice Werdegar's concurrence and applied the rebuttable presumption concept when analyzing meal and rest break claims.⁵ Naturally, wage-and-hour plaintiffs frequently cite these cases when litigating meal and rest break claims. But plaintiffs and courts applying the presumption fail to consider the supreme court's subsequent decision in Duran v. U.S. National Bank Ass'n,⁶ which plainly rejected the use of a rebuttable presumption in allocating the burden of proof in wage-and-hour litigation.

Mt. Clemens and Duran Clarify the Burden of Proof

The seminal case on the standard of proof in wage-and-hour cases is Anderson v. Mt. Clemens Pottery Co.,⁷ issued by the U.S. Supreme Court in 1946. In Mt. Clemens, the Supreme Court recognized that an employee who brings a suit for unpaid compensation first bears the burden to prove he performed work for which he was not properly compensated. Mt. Clemens also recognized, however, that the employer has the duty to keep proper records of wages and hours of work.⁸ The Court balanced these competing obligations with the following framework:

[A]n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount

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