California affords employees the right to a meal period if they work five or more hours in a day. A compliant meal break requires:
(1) That the employee is relieved of all work duties;
(2) That the employee can take a meal period of at least 30-minutes;
(3) That the employee can take a meal period no later than the end of the fifth hour of work; and
(4) That the employee can take a second meal period no later than the end of the tenth hour of work.
An employer that fails to provide meal periods compliant with these requirements must pay its employee a premium wage of one addition hour of pay at the employee’s regular rate of compensation.
In 2012, the California Supreme Court issued an important decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004. In that decision, the Court emphasized that the employer does not have a duty to police its employees’ meal periods. The employer is required to relieve employees of their work duties and provide the employees with the opportunity to take a meal period. If the employee voluntarily takes a meal period that is less than 30-minutes or voluntarily takes a meal period after five hours of work, the employer is not responsible for paying a premium wage.
In the newly published decision of Donohue v. AMN Services, LLC, the California Supreme Court further clarified meal period issues by holding that it is improper for employers to round time punches. The employer in Donohue permitted its employees to work flexible schedules. The employees, however, needed to track their work hours, including meal breaks, using an electronic system called Team Time. Team Time automatically rounded punches to the nearest 10-minute increment. For instance, if an employee clocked in at 8:03, Team Time rounded the clock-in time down to 8:00. But if the employee clocked in at 8:06, Team Time rounded the clock-in time up to 8:10. The Donahue Court held that it was improper to round time related to an employee’s meal and rest breaks because it would deprive employees of their statutory meal periods without payment of premium wages. For instance, an employee who clocked out for lunch at 12:04 p.m. and back in at 12:25 p.m. would have these times rounded to 12:00 p.m. and 12:30 p.m. respectively in Team Time. On paper, therefore, it would appear as if the employee was provided with a 30-minute meal period when, in reality, the employee only took a 21-minute meal. Thus, “[s]mall rounding errors can amount to a significant infringement on an employee’s right to a 30-minute meal period.” The Court reasoned that these infringements could deprive employees of necessary time to deal with personal matters and could increase stress and burdens on employees that are meant to be alleviated with daily breaks.
The Donohue Court also looked at the case of See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, which permitted time punch rounding in the context of calculating regular and overtime pay. The Donohue Court did not overturn the See’s Candy Shop ruling because a neutral rounding policy in that context would often benefit the employee as much as the employer. “For purposes of calculating wages, counting slightly fewer minutes one day can be made up by counting a few more minutes another day.” But the Court cautioned that “the same is not true for meal periods.” This is because a shorter meal period one day cannot be offset with a longer meal period another day when the employer is ultimately responsible for paying a premium for a non-compliant meal break. For example, say an employee who took a 27-minute, non-compliant meal period one day, but had that meal period rounded up to 30-minutes. That employee is not made whole the next day by having a 33-minute meal period rounded down to 30-mintues because the employee was never paid the premium pay to which the employee was entitled.
The Donohue decision also held that time records showing noncompliant meal periods raise a rebuttable presumption of a meal period violation for purposes of summary judgment. In other words, an employee bringing a summary judgment motion in connection to a claimed meal period violation can initially satisfy her burden by introducing timecards that show she took meal breaks that were shorter than 30-minutes or did not start until after five hours of employment. The burden then shifts to the employer to demonstrate that the employee was provided with the opportunity to take a compliant meal period, but chose not to do so, or that that the employee was paid premium wages for non-compliant meal periods.
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Matthew Wallin is a senior associate in the Los Angeles office where he practices labor and employment law. He has extensive experience defending private business and public entities in litigation and advising clients on labor compliance issues.
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