In its latest attack on employers who round employees’ start and stop times, on February 25, 2021, the California Supreme Court ruled in the matter Donohue v. AMN Services, LLC, that meal breaks may not be rounded. Furthermore, the court ruled that when a timecard does not follow the Labor Code on its face, the rebuttable presumption is that the employer did not provide a compliant meal period. As such, the burden of proof transfers to the employer to demonstrate that it relieved the employee of duty and provided a compliant meal break.

The court determined that a rounded time is inadequate for compliance purposes, and employers should instead use the raw data from employee clock-in and -out times. If an employee’s timecard does not show a meal period taken, or if one is taken late or is for less than 30 minutes total, then the court will presume the employee did not receive a full and proper meal period.

The court praised time tracking programs that allow the employees at the time of their clock-in or clock-out to record whether they had started late, missed entirely, or returned early from their meal period because the employee had voluntarily waived the 30-minute period.

Employers that utilize a manual, handwritten timecard are urged to be increasingly cautious. Those employers should ensure that their managers, supervisors, and employees are adequately trained to ensure they are recording the time the employees clocked-out or -in as precisely as possible. Additionally, employers should regularly maintain records that indicate whenever an employee does not take a 100% compliant meal break, such as a form employees may fill out to indicate that they either took all of their meal periods properly; they waived their meal period to start late, return early, or work through the period; or the employee was unable to take a 100% compliant meal break and require meal premium pay.

All employers must ensure that their employees are trained on their right to take a 30-minute, duty free meal break no later than the end of the fifth hour of work, and another 30-minute, duty free meal period that begins no later than the end of the tenth hour of work. Equally as important, Employers need to ensure that any non-compliant meal breaks are properly recorded on a regular basis.

If you are dealing with a wage and hour claim, or if you need to determine whether your timekeeping practices are defensible in light of the Donohue decision, contact the attorneys at Raimondo & Associates at 559.432.3000.

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Raimondo & Associates will continue to monitor these mandates and guidance and provide updates as necessary.