Pursuant to California’s wage orders, an employer must provide employees with a 30-minute meal period before the end of the 5th hour of work. A second meal period must be provided before the end of the 10th hour of work. An employer satisfies this obligation when it relieves employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take a 30-minute meal period, and does not impede them from doing so. A violation results in the imposition of a penalty, referred to as a “meal period premium” unless the employee voluntarily chose to work during a meal period after the employee was relieved of all duty.
What happens if an employer uses a rounding practice to record an employee’s meal period? According to Donohue v. AMN Services, LLC, 2021 Cal. LEXIS 1294, issued by the California Supreme Court on February 25, 2021, the employer will likely be in violation of the meal period law. The problem that arises is that the law is very precise. It requires a meal period of no less than 30 minutes which must occur within the first five or 10 hours of work. Rounding does not provide a precise measurement for determining the time when the employee started the meal period, or the exact length of that meal period. Moreover, it does not compensate the employee for time worked during the meal period that the employer knew the employee was working.
Using the example from the Court, if an employee clocked out for lunch at 11:02 am and clocked in at 11:25, and if the company rounded to the nearest 10-minute increment, the time recorded for lunch would have been 11:00 am to 11:30 am. In actuality, the meal period was 23 minutes. This rounding practice not only masks the length of the meal period, it does not disclose the reason the meal period was not taken nor compensate the employee for time worked during the meal period. Quoting a case involving BBSI which resulted in significant employer liability, the Court wrote, “when time is scarce, minutes count.” The practice of rounding is not as precise as the meal period obligations. A few minutes lost one day cannot be offset by a longer meal period on another day.
As a result, the Court held that employers cannot engage in the practice of rounding time punches with respect to meal periods. Employees are entitled to timely meal periods lasting at least 30 minutes.
Furthermore, time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. In other words, the burden is on the employer to show that an untimely or a short meal period was the result of an employee’s voluntary decision and not due to the demands of the job.
This decision should cause every California employer to consider its wage and hour practices, particularly timekeeping practices with respect to meal and rest periods.
How do you keep track of the exact time an employee leaves for a meal period, how long the meal period lasts, and documentation regarding the employee’s reason for a late or short meal period?
Give Sierra HR Partners a call at 559-431-8090, or reach out to one of our certified consultants by e-mail:
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