On February 25, 2021, the California Supreme Court issued an opinion in Donohue v. AMN Services, LLC that explains an employer’s obligation to provide and record meal periods. Employers must not round meal period time punches—a practice which entails adjusting the hours that an employee has actually taken for a meal break to the nearest time increment.
Rounding time punches for meal periods is inconsistent with the purpose of the Labor Code provisions and the Industrial Welfare Commission’s wage orders. The Court explained that, under a timekeeping system that rounds time punches to the nearest 10-minute increment, an employee who is provided with a 21-minute lunch from 12:04 p.m. to 12:25 p.m. would have lost 9 of 30 minutes of lunch—almost a third of the time—to which he or she was entitled. “Small rounding errors can amount to a significant infringement on an employee’s right to a 30-minute meal period.”
The Court also held that whenever timekeeping records show that an employee failed to take a compliant meal period, a rebuttable presumption arises under which the employer has the burden to prove that it provided compliant meal periods for any shifts for which timekeeping records show that a meal period was short, late, or not recorded at all.
The wage orders and the Labor Code provide that, “[i]f an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.” Wage Order No. 4, § 11(B); Lab. Code, § 226.7, subd. (c).
In light of Donohue, California employers seeking to minimize potential litigation should adopt robust timekeeping systems that accurately track the specific amount of time employees spend on meal periods. The Court indicated that the electronic timekeeping system used by the employer in Donohue, which “included a dropdown menu for employees to indicate whether they were provided a compliant meal period but chose to work, and the system triggered premium pay for any missed, short, or delayed meal periods due to the employer’s noncompliance,” would suffice under the law so long as “the system does not round time punches.” Moreover, the Court suggested that employers should be wary of the fact that as technology for timekeeping purposes continues to advance, “the practical advantages of rounding policies may diminish further.”