©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 209 Making matters worse, a Ninth Circuit opinion applying Troester reversed summary judgment for a retail employer with respect to off-the-clock exit inspections, where the trial court had found that the unpaid exit delays were small, irregular, or administratively difficult to record (i.e., de minimis). The Ninth Circuit rejected the employer’s argument that the exit delays were de minimis even under Troester. The Ninth Circuit interpreted Troester to mandate pay where “employees are regularly required to work off the clock” for times that are more than “minute,” “brief,” or “trifling,” and rejected the employer’s argument that there should be a 60-second threshold, by which otherwise compensable periods as long as 59 seconds could be disregarded.106 7.4.4 “Rounding” Historically, federal law and state law permitted employers to compute employee work time by using a rounding method, “provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”107 For instance, in a 2012 decision, the Court of Appeal held that an employer’s policy of rounding employees’ time clock entries to the nearest tenth of an hour was lawful because the rounding policy was facially neutral and did not systematically under-compensate employees for time worked.108 Subsequently, in a 2018 opinion, another Court of Appeal rejected a challenge to a health care employer’s practice of rounding time to the nearest quarter-hour. The rounding system in question was neutral on its face and, in practice, overcompensated employees as a whole. The plaintiffs did not raise a triable issue as to the validity of the system by citing that they and a bare majority of employees at a single hospital suffered a net loss of compensable time during a discrete period.109 The Ninth Circuit likewise has followed a common-sense approach to evaluating an employer’s practice of rounding to the nearest quarter-hour, recently affirming summary judgment for an employer whose rounding practice complied with both the FLSA and California wage and hour laws and was neutral in design and in outcome.110 But the California Supreme Court began to sow seeds of doubt about rounding in its 2021 Donohue v. AMN Services, LLC. decision, which held that employers may not round time to measure compliant meal periods.111 Donohue rejected the employer’s argument that rounding of meal periods was permissible on the ground that it resulted in overpayment of wages to employees over time. Donohue clarified that the relevant inquiry was not on regular wages but on premium pay for meal period violations. As to that premium pay “the rounding policy is not neutral. It never provides employees with premium pay when such pay is not owed, but it does not always trigger premium pay when such pay is owed.”112 Donohue also inserted, in dictum, some ominous commentary about rounding generally, reminding litigants that the California Supreme Court has never approved the validity of a facially fair and neutral rounding practice, and observing that evolving technology has reduced the practical advantages that commended rounding to judges in the first place.113 In Camp v. Home Depot USA, Inc., the Court of Appeal took up the California Supreme Court’s invitation to reevaluate the legality of rounding under California law.114 In Camp, the employer had a practice of recording employee time punches to the minute, but then rounding the time worked to the nearest quarter-hour. One of the plaintiffs in the case lost a total of 470 minutes over the course of four and a half years due to the employer’s rounding policy.115 But because the employer’s rounding policy was facially neutral and, on average, did not undercompensate employees, the trial court granted summary judgment in favor of the employer on the rounding claim. The Court of Appeal reversed and remanded for further determination, holding that pursuant to Labor Code section 510, employees must be compensated for all time worked. As to the plaintiff who lost time due to the rounding policy, the employer had not paid the employee for over seven hours of work, and this amount of time
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