March 1, 2021
The California Supreme Court’s February 25, 2021 opinion in Donohue v. AMN Services, LLC is the most significant decision construing an employer’s duty to provide and record meal periods in nearly a decade. California employers may wish to assess their meal period policies and practices, including relating to the recordation of meal periods, in light of the Court’s guidance in Donohue.
Donohue reaffirmed the key holding of Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), as the Court once again made clear that employers need not force employees to take full meal periods, so long as such meal periods are provided. But at the same time, the Court held that whenever timekeeping records show that an employee failed to take a compliant meal period, a rebuttable presumption arises under which it is presumed that the employer failed to provide a proper meal period. This means that employers will have the burden to prove they provided compliant meal periods for any shifts in which timekeeping records show that a meal period was short, late, or not recorded at all.
After Donohue, employers seeking to minimize potential litigation may wish to consider, among other options, ensuring that they have robust timekeeping systems that track the amount of time employees spend taking meal periods and automatically prompt employees to confirm they voluntarily chose to take a short or late meal period, or to skip the meal period entirely.
Donohue’s Key Holdings
Donohue makes clear that even where an employer’s records are imperfect, there is no automatic liability. Rather, employers may rebut the presumption that they did not provide compliant meal periods with evidence showing employees were provided proper meal periods. But to avoid unnecessary litigation, among other options, employers might consider adopting timekeeping systems that adequately track meal periods and do not engage in any rounding of time employees spend taking meal periods.
Employers may also want to consider, as one option, implementing timekeeping systems that can flag when meal periods are recorded as short, late, or missed, and create a follow-up process to determine and document whether employees voluntarily chose not to take a full meal period. In fact, the California Supreme 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.” Donohue slip op. at 28.
Finally, while Donohue did not address rounding policies outside the context of meal periods, the Court suggested that technological advances may render such policies obsolete. Given that observation, employers may wish to explore recording work time to the minute without any rounding.
Gibson Dunn lawyers are available to assist in addressing any questions you may have about these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following:
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