©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 227 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, LLC.247 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 that they had received the opportunity to take all meal periods to which they were entitled. Because in Donohue the employer had rounded meal-period time to the nearest 10 minutes, the employees reviewing their time records would not have been alerted to potentially noncompliant meal periods. The Supreme Court proclaimed: “It is the employer’s duty to maintain accurate time records; the law does not expect or require employees to keep their own time records to uncover potential meal period violations.” Importantly, two factors curb Donohue’s impact on employers. First, Donohue limits use of the rebuttable presumption to the summary judgment context, so employers still have strong arguments that the presumption does not apply at other procedural stages, including class certification and trial. Second, Donohue provides that employers may rebut the presumption on summary judgment “with evidence of bona fide relief from duty or proper compensation.”248 Such evidence may include proof 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,” and can even extend to “[r]epresentative testimony, surveys, and statistical analysis.” Can employers use rounded time to see if they are providing 30-minute meal periods? No! The California Supreme Court reversed the Court of Appeal decision in Donohue249 holding that an employer could apply a rounding policy to meal periods. The appellate court decision reasoned that the endorsement of rounding in See’s Candy (see § 7.4.4) extends to meal periods and therefore a trial court need only consider how often a policy results in rounding up and rounding down recorded work time, not the number of meal period violations that are assessed or avoided.250 The high court, conversely, unanimously held that rounding meal periods is impermissible, even if the rounding overall favors employees, because each short or late meal period is itself a violation triggering an extra hour of premium pay. Heeding its mandate to “liberally construe the Labor Code and wage orders to favor the protection of employees,” the Supreme Court reasoned that “even relatively minor infringements on meal periods can cause substantial burdens to the employee,” so that the law requires “premium pay for any violation, no matter how minor.” 7.8.6 Meal periods on premises Under federal law, employers need not pay employees for time spent during any “bona fide” meal period—a period in which the employee is completely relieved of duty for the purpose of eating.251 The employer need not permit the employee to leave the premises during a meal period, if the employee is otherwise completely freed from duties during the period.252 In California it’s different. California courts have followed a DLSE interpretation that employees who must remain on the employer’s premises during meal periods have not been freed from duty, and thus must be paid for that time even if the employees were free to use their on-premises time in whatever way they saw fit.253 In 2012, the California Supreme Court in Brinker generally endorsed the DLSE’s interpretation.254 But meal periods accompanied by a requirement to stay on the premises can be lawful, under the right circumstances. A 2018 Ninth Circuit decision held that employees eating discounted meals on premises were not under the employer’s control and were still relieved of all duties during the meal period. The Ninth Circuit thus upheld a special program that gave employees the option to buy discounted meals so long as they followed a rule
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