On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
MEAL PERIOD ROUNDING – BIG TROUBLE FOR EMPLOYERS
With all of the recent attention focused on the workplace implications of the COVID-19 pandemic, what may be the most significant development of the last 12 months has gone largely unnoticed by many employers.
On February 25, 2021, the California Supreme Court issued a major decision, based on the requirement found in section seven of all California Wage Orders, that employers precisely record the time when meal periods commence and conclude.
In Donohue v. AMN Services, LLC (2021) the Supreme Court held that the practice of “rounding” meal period time punches violates this threshold requirement, and is thus unlawful.
Second and perhaps more significantly, the Court held that, to the degree time records indicate non-compliant meal periods, they create a rebuttable presumption that meal period requirements have been violated.
As a result, if time records reflect for example that a meal period commenced later than the fifth hour of work, by even one minute, this would create a rebuttable presumption of a meal period violation. The same result would follow if time records show an uninterrupted meal period of less than 30 minutes.
Because these and other time-keeping practices are normally applied to the entire non-exempt workforce, as opposed to isolated employees, employers who fail to heed this decision are now more exposed to the risk of class action lawsuits by current and former employees than ever before. Obviously, the costs of defending such actions, even if “successful,” are astronomically greater than those involving individual plaintiffs.
The Donohue case establishes the principle that, even where employees initiate a request for rounding, employers engaging in this practice do so at their own peril.
Donohue reinforces the importance of reexamining and updating meal and rest period policies and time-keeping practices for the purpose of enabling employers to demonstrate that compliant meal periods are provided. It is imperative that time records document that compliant meal periods are provided, that they are taken in a timely manner and they are at least 30 minutes in duration.
In the Donohue case, the company’s timekeeping system rounded challenged time punches to the nearest 10-minute increment, for purposes of calculating both hours worked and compensation.
In 2014, Kennedy Donohue, a nurse recruiter at AMN’s facility, filed a class action lawsuit which asserted wage-hour claims, including meal period violations.
The Supreme Court summarized the most important elements of its 2012 decision in the landmark Brinker case, which established that an employer satisfies its meal period obligations if it relieves its employees of all duties, relinquishes control over their activities, provides an uninterrupted 30-minute break and does not attempt to impede or discourage employees from taking the required break. The Brinker Court famously emphasized that, “The employer is not obligated to police meal breaks and ensure no work thereafter is performed.”
It further noted that there is no meal period violation if an employee voluntarily elects to work during a meal period after being relieved of all duty. An employee’s voluntary waiver of a meal period is important, the Court noted, because “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
Further, the Court stated that, under Labor Code Section 226.7, “even a minor infringement” of the meal period constitutes a violation.
With that backdrop, the Donohue Court concluded that rounding meal period punches violates California law. The Court emphasized the importance of accurately documenting meal periods, and held that records which reflect noncompliant meal periods create a rebuttable presumption of meal period violations.
The upshot of this landmark decision: it is not adequate for employers to merely comply with California’s rigorous meal period laws. They must, in addition, verify that their time records confirm strict adherence to the law.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 40 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 40 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.