See’s Candy Shops, Inc. v. Superior Court (Silva): Court of Appeal Issues Decision On Employer's Time Rounding Policy In Wage and Hour Action

In See’s Candy Shops, Inc. v. Superior Court (Silva) (10/29/12) --- Cal.App.4th ---, the plaintiff filed a putative wage and hour class action against See's Candy Shops. After the trial court certified the class, the plaintiff moved for summary adjudication of four affirmative defenses relating to See's policy of rounding clock-in and clock-out times to the nearest tenth of an hour. Two of the defenses -- not fully discussed in the appellate opinion -- concerned whether any unpaid time was de minimis. The other two defenses -- which are discussed -- concerned whether See's rounding policy complied with California and federal law.

The trial court first denied summary adjudication, then granted the plaintiff's motion for reconsideration and granted summary adjudication. See's filed a writ petition, which the Court of Appeal summarily denied. The Supreme Court granted See's petition for review and ordered the Court of Appeal to issue an alternative writ. The Court of Appeal then reversed the order granting summary adjudication. 

The Court of Appeal held: 

[T]he rule in California is that an employer is entitled to use the nearest-tenth rounding policy if the rounding policy is fair and neutral on its face and "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."  

Slip op. at 27, citing 29 C.F.R. § 785.48; and DLSE Enforcement Policies and Interpretations Manual (2002, rev.) §§ 47.1, 47.2.  

The Court then held that the plaintiff had not met her burden of showing that she was entitled to judgment on this defense as a matter of law, and, even if she had, See's "met its burden to show triable issues of fact regarding whether its nearest-tenth rounding policy was proper under California law because it was used in a manner that did not result over a period of time in the failure to compensate the employees for all the time they actually worked."  Slip op. at 27-29.  

The full opinion is available here.