California Wage and Hour Alert – No Rounding for Meal Periods
On February 25, 2021, the California Supreme Court issued its long-awaited ruling in Donohue v. AMN Services, LLC, and held that employers cannot use the practice of “rounding: in the context of meal periods.
The practice of adjusting an employee’s hours to the nearest preset time increment, even when done equally and fairly on both sides, can result in time records that do not facially show an employee took a compliant meal period (i.e. before the end of the fifth hour worked) therefore a rebuttable presumption arises that the employer failed to provide it, giving rise to a meal period violation.
The full text of the ruling can be found here: Donohue v. AMN Services, LLC. For more on the high court’s decision, please continue to our blog.
Procedurally, the court viewed the scenario that, if an employee clocked out a minute after the end of the fifth hour worked, or clocked back in from the meal period after only 29 minutes, the time punches would round in a way that made the meal periods appear compliant on the time records. Interestingly, the case was not about proper compensation, rather it was focused on AMN’s ability to avoid proper payment for premium wages for meal period violations. In fact, the rounding policy would not lead to payment of premium wages because even short meal periods recorded as the full 30 minutes and a late meal period rounded back to being timely.
While the Brinker decision had freed employers from “policing” meal breaks, and federal law interpreted the FLSA as allowing for “de minimis” time, in 2018, the California Supreme Court decided, in Troester v. Starbucks Corporation, that the de minimis doctrine was inconsistent with California law and in 2020 held that the time employees spend going through pre- or post-shift personal effects searches is compensable time.
There will certainly be much more to come on this. For now, though, the high court’s opinion that meal period provisions are “designed to prevent even minor infringements,” must be taken seriously by all California employers. To what extent this might expand to envelope the practice of rounding the start time of an employee’s shift is unclear. Theoretically, that could also result in an employee starting the meal period after the end of the fifth hour.
Definitely a good time for all California employers to carefully review their time and attendance policies with an eye toward any rounding practices.