15 Mar New Laws on Meal Periods
In a recent case, Donohue v. AMN Services, LLC (“Donohue”), the California Supreme Court reversed an appellate court ruling and made two important rulings about meal periods and timekeeping/rounding practices:
- Employers may not round meal periods; and
- There is a rebuttable presumption that an employer has violated the Labor Code when time records show that a meal period was late, interrupted or missed.
What are rounding practices? This is when an employer decides to implement a practice of rounding employee time punches up or down to the nearest quarter-hour (or less). A rounding practice is valid as long as the practice is neutral on its face and in practice — meaning that over time, it doesn’t favor the employer or employee. Neutrality is key.
As you probably know, there are precise time requirements of compliant meal periods —each meal period must be no less than 30 minutes in length and must start no later than the fifth hour of work. This was crucial to the Supreme Court’s reasoning in the decision. Although rounding in general is still lawful, the court found that because there was no way for the meal period rounding to be “neutral” it was not allowed. Any meal period that does not comply with these rules no matter how slight or insignificant triggers meal period premium pay.
What is meal premium pay? Labor Code section 226.7 provides that if an employer fails to provide a meal, rest or recovery period, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation, for each workday that the meal or rest break is not provided. This premium pay only applies to nonexempt employees and is not due if the employee voluntarily chose not to take a compliant meal break; only when they were unable to. Premium pay is not included when calculating overtime.
Phew, serious stuff, right?! So, you may be wondering what you can do now to stay out of hot water.
Here are ways you can ensure compliance with meal breaks:
- If you have timekeeping practices that round employee time punches, ensure this practice excludes rounding for meal periods. You’ll want to ensure that your timekeeping systems accurately portray an employee’s actual meal period punches. You may still use rounding for punches related to the beginning or end of an employee’s shift if the rounding practice meets the above criteria. I recommend consulting with an HR expert or legal counsel before establishing a rounding policy or asking them to review your current policy to ensure legal compliance.
- Ensure your policies are updated so that employee meal periods are accurately recorded and that all late, short, interrupted, and missed meal periods are addressed. Train nonexempt employees, managers, and supervisors so they understand the policy.
- Create procedures for nonexempt employees to affirm that they were able to take a compliant meal period and notify you when they were unable to. Establish a process that captures when meal premiums are due to employees.