[T]he court notes its agreement with Justices Werdegar and Liu that it is the employer's burden to rebut a presumption that meal periods were not adequately provided, where the employer fails to record any meal periods. Otherwise, employers would have an incentive to ignore their recording duty, leaving employees the difficult task of proving that the employer either failed to advise them of their meal period rights, or unlawfully pressured them to waive those rights. See Brinker, 139 Cal. Rptr. 3d at 353 & n.1 (Werdegar, J., concurring) (citing Cicairos, 133 Cal. App. 4th at 961 ("[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee." (internal quotation marks omitted))). Here, as mentioned, there is no dispute that USIS failed to record any meal periods.See Ricaldai v. US Investigations Servs., LLC, 2012 U.S. Dist. LEXIS 73279, at 14 (C.D. Cal. May 25, 2012).
In addition, summary judgment was denied on the further ground that the plaintiff was unable to access off-duty breaks. The Court’s opinion demonstrates the extremely low “discouragement” threshold necessary to establish a barrier to breaks, post-Brinker. Despite the fact that the plaintiff in this case worked independently, and purportedly had control over her schedule, summary judgment was denied based on evidence that plaintiff was “implicitly trained” to take on-duty meal breaks and precluded from using time for her own purposes:
However, even if the burden of proof were on Ricaldai, the court would still find a genuine issue of material fact….
Ricaldai offers evidence that she was implicitly trained to take working lunches, expressly told that personal errands were prohibited without prior authorization, specifically directed to fill her entire day in each geographic area with job duties, and correspondingly discouraged from taking any time off. Viewing this evidence in the light most favorable to Ricaldai, a rational trier of fact could conclude that USIS pressured her to take working lunches instead of duty-free meal periods, in violation of California meal period law under Brinker.
Contrary to USIS' argument, it does not change the summary judgment analysis that USIS exerted no direct control over Ricaldai during her work day and allowed for overtime, and that Ricaldai therefore admitted at deposition that she technically could have scheduled her work day to incorporate a duty-free meal period while still completing her tasks. As discussed, there is sufficient evidence that, viewed in the light most favorable to Ricaldai, USIS nonetheless unlawfully discouraged Ricaldai from scheduling a meal period during her workday.Ricaldai v. US Investigations Servs., LLC, 2012 U.S. Dist. LEXIS 73279, at 17-18.