Employers May Not 'Round' Meal Periods

Employers and payroll services often 'round' time entries, calculating total time worked to the nearest tenth or quarter of an hour. Federal law expressly permits this, for example allowing time to be rounded down from one to seven minutes (8:01 is counted as 8:00) so long as time is rounded up from eight to fourteen minutes (8:14 is counted as 8:15). State law generally follows this rule so long as the process does not ultimately favor the employer.

Unfortunately, despite many employers' reliance on the doctrine, the same rule now does not apply to meal-period tracking. In Donohue v. AMN Services, LLC, the California Supreme Court held that the rounding rule cannot be used to record employee breaks because meal periods are designed to provide an absolute minimum time off for employees. According to the court, systems that apply rounding to meal periods do not guarantee that employees actually received a full 30-minute meal time, as an employer's system might show a half-hour break when the employee was gone for less than thirty minutes.

This decision, like so many recent appellate cases, applies retroactively and thus guarantees a host of Donohue-based individual and class-action claims. While payroll companies are sure to change their practices quickly, employers should monitor their providers and their own practices to eliminate rounding when tracking meal periods.

The Donohue case can be viewed here.

Ensure IIPP is Available to Employees

California's law requiring employers to maintain a written Injury and Illness Prevention Plan ("IIPP") was adopted over thirty years ago. Under this requirement, employers must proactively identify and develop plans to mitigate workplace dangers, regularly updating the IIPP if conditions change.

Cal-OSHA makes this process easy for most employers, providing model forms and guidance on its website such as the non-high-hazard example here and a full guide to developing IIPP materials here.

Effective January 1, 2021, employers must now make their IIPP available to employees or their labor representatives (i.e., union) within five days of a request. This must be satisfied by providing a written copy unless the requestor agrees to accept an electronic version. Initial copies must be free. Alternatively, the program can be maintained on an employer's electronic resources so long as employees regularly use the system to communicate with management. Employees must be advised of their right and the procedure to request review of IIPP materials (which is best distributed in the employee handbook).

The chief benefit of this change is to remind employers that IIPPs are not "set and forget" programs. Management should review and revise their programs regularly and keep copies readily available for employee (and Cal-OSHA) review.

Emergency COVID-19 Prevention Regulations Take Effect Immediately

The California Office of Administrative Law approved emergency COVID-19 Prevention regulations on November 30, 2020. The regulations are now in effect and remain in force through October 2, 2021, unless extended or withdrawn.

Fact Sheet: Our initial chart of requirements and interpretation of the emergency regulations can be viewed here. Employers should look for continued guidance from Cal-OSHA and state public health authorities over the coming weeks.

Cal-OSHA has also published a Frequently Asked Questions page discussing the emergency regulations and provided a model COVID-19 Prevention Program. The FAQ page can be viewed here and the model format can be downloaded here.

The status and text of the regulations can be viewed on the Department of Industrial Relations website here.

The regulations (discussed in a prior post here) impose many new obligations including preparation of a Written COVID-19 Prevention Program, employee training, workplace modification and procedures, notification of employees potentially exposed in the workplace, exclusion of workers who have been exposed or test positive, notice to local authorities, and continued pay and benefits for employees excluded from work due to COVID-19 concerns. The regulations also address employer-provided housing and transportation.

Employers should act immediately to implement policies and practices required by the emergency regulations. They should also consider whether prior COVID-19 exposures will now require further notification, or additional pay and benefits, to affected employees.