California Supreme Court Hands Employers a Mixed Bag on Meal Periods
On Thursday, a unanimous California Supreme Court issued its long-awaited decision in Donohue v. AMN Services, LLC, providing answers to two important questions about meal periods: (1) whether it is permissible to round meal period punch times, as with work start and stop times; and (2) whether records showing a missed, late, or short meal period raise a presumption of non-compliance on summary judgment/adjudication, as well as other stages of litigation.
The timekeeping system used by the employer in Donohue rounded all employee “punch times” to the nearest 10-minute increment—including those reflecting meal periods. As a result, for example, if an employee punched out for lunch at 11:02 a.m. (rounded back to 11:00 a.m.) and punched back in at 11:25 a.m. (rounded forward to 11:30 a.m.), the system recorded a 30-minute meal period (even though only 23 minutes had actually elapsed). When an employee’s rounded meal punches indicated that a meal was missed, shorter than 30 minutes, or late (e.g., commencing after more than five hours), the system provided a drop-down menu by which an employee was asked to indicate either that the missed, late, or short meal period was the result of: (1) the employee’s own choice; or (2) the press of work. Only if the employee selected the latter (press of work) would the employer credit the employee with a meal premium of one additional hour of pay at the regular rate of compensation.
While the Supreme Court recognized that time rounding was, in general, permitted under federal law and prior California decisions, it decided not to follow that authority in the case of meals. Instead, purported “health and safety concerns” that underlie meal period requirements “distinguish the meal period context from the wage calculation context, in which the practice of rounding time punches was developed,” and “even relatively minor infringements on meal periods can cause substantial burdens to the employee.” In dicta, the Court even took a swipe at prior decisions that had endorsed rounding, in general, noting that, “[a]s technology continues to evolve, the practical advantages of rounding policies may diminish further.”
The Court went on to endorse a concurrence by Justice Werdegar in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), oft-cited by plaintiffs’ lawyers, in which she suggested that if an employer’s records did not reflect a compliant meal period, it would raise a rebuttable presumption that none was provided. Notwithstanding this unfortunate move, the majority did provide helpful clarification about how employers could overcome such a presumption: “by presenting evidence that employees were compensated for noncompliant meal[s] … or that they had in fact been provided compliant meal periods during which they chose to work.” The Court also reiterated its prior holding from Brinker that an “employer is not liable if … [an] employee chooses to take a short or delayed meal period or no meal period at all,” and affirmed there is no need “to police meals to make sure no work is performed.”
Although Donohue involved dueling summary judgment/adjudication motions, its lessons extend beyond the case’s procedural posture. In light of Donohue, employers should promptly revisit their meal period rounding practices (if any), and may want to consider this latest utterance from the California Supreme Court to be a “warning shot” that the days of rounding time up or down, in general, may be numbered. As to the presumption mentioned above, while the Court seemed to like the employee drop-down attestations insofar as they could demonstrate an employee chose to forgo the opportunity for a meal, in Donohue, it found them insufficient to overcome the presumption because they were tainted by the employer’s rounding of meal periods. Thus, to address inevitable situations when employees fail to take meal periods, employers should consider requiring similar attestations when records reflect untimely, missed, or short meal periods—without any rounding modification.
As with all important wage/hour developments such as this one, employers should consult with counsel as they adapt to the ever-changing landscape.