Under well-settled California law, hourly, non-exempt employees who work more than 5 hours in a day are legally entitled to a 30-minute, uninterrupted, unpaid, and duty-free meal period that must begin before the employee works more than 5 hours.  Hourly employees who work more than 10 hours in a day are legally entitled to a 30-minute, uninterrupted, unpaid, and duty-free meal period that must begin before the employee works more than 10 hours in the day. 

Employees can only waive their legal entitlement to their first meal period if they work no more than 6 hours in the day, and they can only waive their legal entitlement to their second meal period if they work no more than 12 hours in the day. 

It is the employer’s burden to keep accurate records showing the start and end time of all meal breaks.  Employers are subject to a penalty of 1 hour of pay at the employee’s regular rate of pay for each day that the employee is unable due to work demands to take 1 or more legally compliant meal breaks. 

In a recent case out of the CA Supreme Court, Donohue v. AMN Servs., LLC, the Court made two additional critical conclusions of law with respect to meal breaks:

  1. Employers cannot round employee time punches for meal periods; instead, the time records must reflect the actual start and end times of the breaks; and
  2. If the employer’s time records show no meal breaks taken, or if they show late or short meal breaks, such time records will raise a rebuttable presumption that the employer violated its legal obligation to give employees the opportunity to take legally compliant meal breaks; it then becomes the employer’s burden to prove that it provided the employee the opportunity to take legally compliant meal breaks which the employee opted not to take.

In this case, although the defendant employer had legally compliant meal break policies in their handbook, they used an electronic timekeeping system that rounded employee time punches.  For example, if an employee clocked out for lunch at 11:02 a.m. and clocked in after lunch at 11:25 a.m., the system would record the break as 11:00 a.m. to 11:30 a.m. even though the actual meal period was 23 minutes.  During litigation, the employer presented evidence that this rounding system actually overcompensated their employees.  The court held that this was irrelevant, and that “[t]he practice of rounding time punches for meal periods is inconsistent with the purpose of the Labor Code,” which expressly entitles employees to meal breaks that are “not less than 30 minutes.”  In sum, the court held that employers must keep records showing the actual start and end times of all meal breaks.

Separately, the court also held that where the employer’s time records show noncompliant meal breaks (e.g., breaks that start after the employee has worked more than 5 hours, or breaks that are less than 30 minutes long, or no break taken at all), a rebuttable presumption arises of meal period violations, and it becomes the employer’s burden to prove that the employee elected not to take the timely, 30-minute break that the employer made available to them in order to avoid being subject to penalties. 

This case reinforces that it is critically important for California employers to have (1) legally compliant written meal break policies in an employee handbook or in another standalone document, (2) accurate time records showing the actual clock ins and outs of hourly, non-exempt employees, including for meal breaks, and (3) where an employee’s time record shows a noncompliant break, this should be immediately addressed, including by either paying the meal break penalty, or inquiring into why the break was noncompliant, and documenting that the employee voluntarily waived the break.

For more information about this decision or any other employment-related matters, please contact a Bernstein & Friedland, P.C. attorney at 818-817-7570.

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The above summary has been prepared for general informational purposes only and is not intended as legal advice.  

Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

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