A recent California Supreme Court ruling that gave workers a lift in claims that their employers did not provide meal breaks required by state law has made minute-by-minute accounting vital to compliance.
In Donohue v. AMN Services LLC, the high court said the state's meal period law has precise time requirements that prescribe a 30-minute unpaid break no more than five hours after someone begins work. In light of the law's requirement that employers keep records of when workers take breaks or waive them, a defendant's inability to produce documentation creates a presumption that it broke the law, the court added.
Michael Singer, managing partner of worker-side firm Cohelan Khoury & Singer, claimed that one of the biggest benefits to employees was the court's holding that incomplete records strongly suggest a business did not provide compliant breaks. That flips the burden so that it's on a defendant to justify why a break did not occur, such as by providing documentation that an employee agreed to skip it.
"It's a hundred percent reversal of the way we have had to fight," Singer said. "Now, it's presumed to be a violation and the burden is on the defendant to show as a matter of its affirmative defenses that the employees waived or otherwise chose to take a late or a short meal break."
The meal break law requires employers to keep records that document when breaks occur and explain the circumstances if they don't happen, he said. A company should not get to avoid liability as a result of its failure to maintain adequate logs, said Singer, who filed an amicus brief in the case on behalf of the California Employment Lawyers Association, a professional group of attorneys who represent workers.
And a rebuttable presumption doesn't mean a court will always find that an employer's failure to show it provided compliant meal periods indicates the defective breaks were a violation, Singer added.
"Occasionally there will be anomalous situations where they're not," he said. "Donohue gives the employer some … remedies to try to figure out whether it's a situation where people really weren't entitled to an hour of pay because there wasn't a violation, even though the records presume there was."
Dennis Moss, who is of counsel to worker-side firm Moss Bollinger LLP, said the ruling's emphasis on the specific time thresholds in the meal period law shows that compliance requires minute-by-minute accounting of employee time.
"What Donohue did was say you can't hide behind a rounding practice that records hours improperly to make it look like employees are getting the full 30 minutes," he said. "Donohue said you can't round your way around short meal breaks."
By shifting the burden onto employers to demonstrate they provided compliant breaks, the Supreme Court made them back up their contention that they did what they're supposed to, said Moss, who filed an amicus brief in the case.
Paul Grossman, a Paul Hastings LLP partner who advises employers, said the court's push for minute-by-minute accounting makes clear that the smart path for employers to follow is to simply not round clock-in and clock-out times or meal periods themselves. Including some cushion on the time would help, he added.
"I have been recommending forever that you not take it to the limit on meal periods," he said. "I've been recommending that employers have a 30- to 45-minute meal period to avoid short meal periods," he said.
"After all, they're unpaid," he added. "Generally, employees appreciate a slightly longer meal period," said Grossman, who is general counsel of the California Employment Law Council, an employer advocacy group that filed an amicus brief.
In the year since the state court decided Donohue, it's been cited in 34 rulings, according to litigation data provided by Law360's parent company, LexisNexis.
In one example of how the presumption helps plaintiffs, U.S. District Judge James Donato granted class certification to SkyWest Airlines ground staff who say they often did not receive breaks when they were supposed to. According to dozens of sworn declarations, the company's emphasis on servicing planes upon arrival and departure required frontline personnel to jump into action at unpredictable times and frequently delayed their breaks.
An expert analysis of employees' time records raised the specter of noncompliant breaks, which the airline failed to overcome with its own account of how it didn't closely monitor how employees spent their shifts, Judge Donato said in a September class certification order.
"SkyWest did not rebut that presumption; if anything, its submissions are remarkably consistent with plaintiffs' evidence of violations," the judge wrote.
"It may be, as SkyWest suggests, that sometimes there was so much downtime in between flights that agents were able to relax in the breakroom, get food, watch TV, or play games for at least 30, uninterrupted minutes — all on the clock," he said. "What matters for present purposes is that SkyWest does not dispute that it has a "practice of not paying meal-or rest-period premiums."
But a separate case demonstrates that a presumption only makes a liability ruling against an employer more likely and doesn't dictate an outcome in plaintiffs' favor.
In Gonzalez v. Hub International Limited, a U.S. district judge found in May 2021 that class certification wasn't warranted in a suit alleging an insurance broker failed to provide compliant meal periods.
Although the two plaintiffs who sued HUB International said their records showed that their breaks fell short, the presumption was irrelevant to their argument that the court should let them proceed under the group litigation process permitted by Rule 23 of the Federal Rules of Civil Procedure, U.S. District Judge Percy Anderson said.
"Donohue's rebuttable presumption does little to satisfy their burden to establish by a preponderance of the evidence that they have satisfied Rule 23's requirements for class certification," the judge said.