44 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com violations of meal period requirements and violations of rest period requirements ... up to two premium payments are allowed per work day.”225 Many employers fail to maintain records that comprehensively establish that employees in fact took their meal and rest periods. This is especially the case when an employer has mistakenly classified a position as exempt, because employers are not required to keep time records for employees covered by the most common exemptions (administrative, executive, and professional). Section 7 of the Wage Orders requires employers to record meal periods of non-exempt employees, and the DLSE generally has opined that in the absence of records proving that meal periods were taken, the employees are presumed not to have taken them (although the presumption is rebuttable).226 In 2021, the California Supreme Court issued a landmark ruling affirming that time records showing noncompliant meal periods raises a rebuttable presumption of meal period violations. In Donohue v. AMN Services, LLC, the Supreme Court held that if “time records show missed, short, or delayed meal periods with no indication of proper compensation, then a rebuttable presumption [of a violation] arises.” 227 “Employers can rebut the presumption by presenting evidence that employees were compensated for noncompliant meal periods or that they had in fact been provided compliant meal periods during which they chose to work.”228 This decision reiterates the need for employers to ensure accurate timekeeping of meal periods. Unsurprisingly, when recordkeeping has been poor, these cases have been more difficult to defend, and numerous meal period class actions have been filed. For example, in the absence of company records, employees may deny they took meal periods that they actually took if the employer has not enforced a requirement that they document meal periods. However, as discussed below, California law requires only that employers must provide employees with the opportunity to take meal periods (and need not force employees to take them). Thus, employers can (and should) argue that the absence of records showing that meal periods were actually taken does not establish liability, and that individualized inquiries are required to determine the reason that a meal period was not recorded. Likewise, because rest periods need only be “authorized and permitted,” analysis of a rest period claim on a class basis may be precluded by individualized issues, including whether the rest period was taken (as records of rest periods are not required), whether given employees understood they could take a rest period, and if they failed to take one, why they failed to take it. 225 Id. at 68. 226 Note, however, that Section 7 of the Wage Orders also provides that “Meal periods during which operations cease ... need not be recorded.” No published case has interpreted this provision, but logically it would seem to apply, for example, where a manufacturer stops a production line at a scheduled time and all employees on that line go to lunch as a group. Having many employees simultaneously trying to clock out for lunch would be problematic, so it would make sense to permit the established break schedule to substitute as a record of the breaks taken under such circumstances. 227 Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 77 (2021). 228 Id.
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