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As we previously wrote here, in October 2022, the Sixth District of the California Court of Appeals in Camp v. Home Depot USA, Inc., 84 Cal.App.5th 638 (2022), ignored a decade of precedent and made Home Depot’s total rounding time for its non-exempt employees unlawful. In so ruling, the court held, “if an employer, as in this case, can capture and has captured the exact amount of time an employee worked during a shift, the employer must pay the employee for ‘all the time’ worked. ” The court rejected at least half a dozen previous appellate opinions and instead focused on carefully selected passages from the California Supreme Court decision in Troester x Starbucks5 Cal.5th 829 (2018) and Donohue v. AMN, 11 Cal.5º 58 (2021). In Troester, the Supreme Court upheld the federal decision de minimis the doctrine did not apply in California, and employees must be paid for all the time they worked, even during activities that occur regularly but only take a few minutes a day before clocking in (for example, going through baggage check). In Donohuethe Supreme Court rejected rounding of time for 30-minute meal periods, although it did not address whether rounding clock points for entry and exit times when shifts begin and end was improper.
O Camping the court concluded that rounding off employees’ total time is inadmissible when the employer records actual time and has the ability to pay by the minute. In reaching its decision, the court relied primarily on a plaintiff who lost time due to rounding. Surprisingly, the court ignored the fact that the other plaintiff was admittedly overpaid due to rounding. Underpayment by one author and overpayment by another suggests equal rounding over time as a whole. However, the Camping The court did not find this highly significant fact and ignored the established principle that rounding systems should not be assessed or found illegal solely on the basis of their isolated impact on a single employee.
After Home Depot appealed, the California Supreme Court granted the review opinion in February 2023. The parties’ briefing is ongoing, and on June 1, 2023, Home Depot filed its initial summary. In the absence of any extensions, Camp’s response summary will be due on July 3, 2023. Home Depot will then have the opportunity to submit a response summary.
The California Employment Law Council (“CELC”) and the Employers Group, not-for-profit firms that advocate on behalf of employers, hired Richard J. Simmons and Tyler J. Johnson of Sheppard Mullin to write the employer amicus brief in Camping. In doing so, CELC and Employers Group confirmed Sheppard Mullin’s position as the preeminent employment law firm and subject matter expert on wage and time issues. The amicus brief will serve as the voice of employers across California and provide further support to Home Depot in showing the California Supreme Court the validity of time rounding. Time rounding has long been used by employers in California and the California Court of Appeals has consistently upheld its validity when practices are properly designed. O Camping decision called into question whether employers can continue to round off time. An adverse Supreme Court decision could lead to possible class action lawsuits and PAGA claims, as well as unpaid wages and fines for employers. Sheppard Mullin’s amicus brief will play a critical role in arguing to the Supreme Court that this should not happen.
Sheppard Mullin will continue to update readers as the briefing process unfolds.