Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 221 changed it, and, if there was a change, whether the change should apply retroactively . 225 O n remand, the Court of Appeal recognized that Section 11(D) validly authorizes waivers of second meal periods in the health industry . 226 7.8.4 Timing of meal periods The California Supreme Court has ruled that an employer timely provides meal breaks so long as the first meal period is provided no later than the end of the fifth hour of work (for work shifts exceeding five hours) and the second meal period (for work shifts exceeding ten hours) is provided no later than the end of the tenth hour of work . 227 No de minimis rule as to unprovided meal periods. There is no de minimis exception to the timing requirement for a meal period. In 2018, the Court of Appeal rejected an employer’s argument that it lawfully provided meal periods that began “slightly” after the end of the fifth hour of wor k. 228 The basis for applying the de minimis doctrine was absent, the Court of Appeal reasoned, because “there is no indication of a practical administrative difficulty recording small amounts of time for payroll purposes.” The California Supreme Court reaffirmed this reasoning in a 2020 decision, which addressed the length of meal periods—in the context of disapproving rounding—but which used language that would also apply to the timing of meal periods: “even relatively minor infringements on meal periods can cause substantial burdens to the employee,” so that the law requires “premium pay for any violation, not matter how minor. ” 229 7.8.5 Meaning of “provide” As explained above, California employers must not employ an employee for a work period exceeding five hours “without providing” a 30-minute meal perio d. 230 In this context, what does “provide” mean? No duty to ensure break is taken. The Court of Appeal and DLSE once held that employers must ensure that employees actually take their meal breaks . 231 The California Supreme Court corrected this mistake in 2012, holding that employers must “provide” a meal period only in the sense that they must timely and adequately relieve the employees of duty; the employer need not police the break or otherwise ensure that the employee refrain from working during the brea k. 232 Meal breaks, like rest breaks, need not be taken if that is the employee’s own choice. See § 7.9.2 (discussing case law holding that an employer was not liable when an employee failed to report rest breaks interrupted by co- workers). If the employer knows or should know that the employee has decided to work during a scheduled meal period, then the employer’s obligation is to pay for the working time, not to pay the hour of premium pay that would be due for a meal-period violatio n. 233 Do time records alone prove a violation? The Court of Appeal in 2019 recognized that an employer is not liable for short, late, or missed meal periods absent proof that the employer actually failed to provide a meal period . 234 The plaintiffs sued under the Unfair Competition Law, asserting that the employer’s failure to pay meal period premiums constituted an unfair business practice that triggered premium pay on every occasion that time records showed a short, late, or missed meal period. The Court of Appeal affirmed summary judgment against this claim, explaining that the plaintiff’s theory would impose liability regardless of whether the employer actually broke the law by failing to provide a meal period. The decision reaffirms the basic point that an employer is not automatically liable for every short, late, or missed meal period. But the California Supreme Court dashed employer hopes on this score with its 2021 decision in Donohue v. AMN Services, LL C . 235 Donohue— adopting as the law what had only been a two-justice concurrence in the Brinker case—held that time records showing noncompliant meal periods raise a rebuttable presumption of violations. What’s more, Donohue cast doubt on the employer’s ability to rebut that presumption with employee certifications