by Teresa R. Tracy
In late February, the California Supreme Court ruled that employers may not round time for meal breaks. This means that the large number of employers who still round clock in and out time cannot do so for meal breaks even if they continue to lawfully do it at the beginning and end of the workday. An employee is entitled to a full 30 minutes for meal breaks, and rounding could obscure a violation. Furthermore, a lunch that actually began after the end of the fifth hour of work could be rounded to start before the fifth hour ended, again obscuring a violation. The state Labor Code requires premium pay for any violation of the timing requirements, no matter how minor, according to the court. Therefore, a short, late, or interrupted meal break that is even just a few minutes off is a violation of the meal break requirements and triggers the premium pay obligation.
As a practical matter, this means that employers have two choices: (a) implement a hybrid timekeeping system that allows rounding for other purposes but not meal breaks, or (b) eliminate rounding and the associated grace period and convert to a strict timekeeping system where every minute worked is not only recorded but paid at the applicable rate. Either way, the court clearly rejected a de minimis argument when it comes to whether a meal break is short, interrupted, or late. Of course, under a strict timekeeping system, every minute not worked is also recorded and is unpaid, and there are no “grace periods.”
In the avalanche of litigation that is likely to result from this ruling, an employees’ advantage has also been significantly increased. Time records showing noncompliant meal periods (missed, delayed, interrupted, or short) raise a rebuttable presumption of meal period violations. All the employee has to do to raise this presumption is point to time records that show noncompliant meal periods. While the employer has the opportunity to rebut this presumption, there are limited ways to do this: (a) pay for the meal period, or (b) prove the employees were provided with compliant meal periods during which they voluntarily chose to work.
Even employers who program their timekeeping system to automatically pay premiums each time a short, delayed, interrupted, or missed meal period is recorded can be negatively affected by this decision. The system should be carefully reviewed to confirm that it is properly programmed to meet the “precise time requirements” of the law.
Furthermore, employers may rebut the presumption by providing evidence that employees were provided compliant meal periods but they voluntarily chose to work, skip, shorten or delay the break. This can be done by having someone follow up with the employee every time the accurate system shows a potential violation. It may also be possible for the timekeeping system to have a drop-down menu that prompts the employee to choose one of three options every time there is a potential violation (e.g., the employee does not get a full 30 minutes in a timely manner), i.e., (1) “I was provided an opportunity to take a 30 minute break before the end of my 5th hour of work but chose not to;” (2) “I was provided an opportunity to take a 30 minute break before the end of my 5th hour of work but chose to take a shorter/later break;” or (3) “I was not provided an opportunity to take a 30 minute break before the end of my 5th hour of work.” The system can then trigger premium pay if the third option is selected. Is this approach bullet-proof? Perhaps not entirely, but it certainly would provide the court with credible evidence that the employer is not liable.
Other ways that could rebut the presumption include representative testimony, surveys, and statistical analysis of the type traditionally used to defend these claims.
Unfortunately, the court’s recent decision swings the doors wide open for continued litigation and liability.
 Donohue v. AMN Services, LLC (2021), California Supreme Court Case No. S253677 (Feb. 25, 2021)
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