Late last year, California’s Third District Court of Appeal held that an employee’s rounding claims were not suitable for class treatment after observing, among other things, that the employer’s failure to have a uniform company-wide rounding policy was “not a recognized theory of liability,” as the plaintiff had argued it was.

This decision comes less than a year after Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, in which the California Supreme Court disapproved of employers’ rounding of meal periods, as discussed further below.

The following are key takeaways from the recent Third District case, Cirrincione v. American Scissor Lift, Inc., plus a recap and reminder of case law governing California time-entry and rounding claims.

American Scissor Lift and Employer Time-Rounding Absent a Policy

Plaintiff Jason Cirrincione (“Plaintiff”) worked as an hourly, non-exempt employee for American Scissor Lift, Inc. (ASL), a company that rents out heavy machinery like scissor lifts and machine booms. Plaintiff primarily painted the rental equipment; he also welded, sanded, cleaned, assembled, and delivered it.

Following his employment, Plaintiff filed a class action suit against ASL (and other defendants not relevant here), purporting to represent about 50 similarly situated former and current ASL employees.

The operative complaint alleged failure to pay overtime wages (Lab. Code, §§ 510, 11942; Wage Order No. 16-2001 (Cal. Code Regs., tit. 8, §11160, subd. 3(A)), failure to pay minimum wages (Lab. Code, § 1194); and other claims including failure to provide proper meal and rest breaks and failure to pay reimbursement expenses, not discussed here.

Claims relevant to this discussion of rounding were predicated on ASL’s policy and/or practice of rounding its employees’ work time, which Plaintiff alleged resulted in the systematic underpayment of wages.

Thus, when Plaintiff moved for class certification in 2019, he proposed a subclass based on the rounding allegation (among other proposed subclasses). Plaintiff’s underlying theory of liability was that “ASL . . . engaged in unlawful rounding of employees’ hours worked because it did not have any rounding policy and the net effect of its rounding resulted in the systematic underpayment of wages.”

Opposing Plaintiff’s motion, ASL argued that common questions of law and/or fact did not predominate over individual issues because, among other things:

  • ASL’s decision-making process was decentralized (namely, each of its four branch locations was run by a different manager); and
  • ASL had no uniform company-wide policies or practices related to rounding, although the applicable IWC wage order was posted at each branch location and the branch managers “followed the law.”

The trial court concluded that Plaintiff failed to establish the predominance of common questions of law or fact, or typicality of the subclasses (among other requirements for class certification). As for the proposed rounding subclass, the court noted that the practice of rounding employee work time is not a violation of California law, so long as the rounding is done in a fair and neutral manner that doesn’t yield underpayment (see See’s discussions below).

Importantly, the court also rejected Plaintiff’s notion that an employer’s practice of rounding absent a uniform, written rounding policy was a violation of California law, noting that Plaintiff failed to support his theory with any case law. In addition:

  • Plaintiff’s evidence lacked clock-in and clock-out times for meal periods, which would have been key to determining whether ASL’s rounding resulted in underpayment of wages;
  • Rounding practices varied by location and supervisor (e.g., one supervisor rounded times up or down to the nearest quarter hour, whereas two other supervisors always rounded up in favor of the employee); and
  • Each of the four branches implemented its electronic timekeeping system at a different time, and with a different effect upon its rounding practice.

Accordingly, the trial court concluded Plaintiff’s rounding claims were not suitable for class treatment.

The Third District Appellate Court agreed, observing that predominance was the primary class certification requirement at issue here. It noted that the trial court had properly considered the substantive law governing rounding claims (see below), and agreed with the trial court’s rejection of Plaintiff’s “unsupported assertion that an employer’s practice of rounding employees’ work time violates California law in the absence of a uniform, written rounding policy.”

Stated differently: “Simply alleging the existence of a uniform policy or practice (or unlawful lack of a policy) is not enough to establish predominance of common questions required for class certification.”

Citing See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 907, the appellate court echoed the trial court’s reminder that California employers may round employees’ work time if the rounding is done in a “fair and neutral” manner that does not result in the failure to properly compensate employees for all the time they have actually worked.

The appellate court added: “There is nothing in See’s Candy Shops, Inc. (or any other case we are aware of) supporting the proposition that the absence of a written rounding policy constitutes a violation of California law where an employer has a practice of rounding its employees’ work time.

“In short, plaintiff’s purported theory of liability is not a recognized theory of liability.”

Rounding Case Law: A Recap

Both the trial court and the Third District Appellate Court in American Scissor Lift relied on See’s Candy Shops, Inc. in considering the substantive law governing rounding claims. As a reminder to employers, employees, and their counsel, See’s and other relevant rounding authority are recapped here:

For further discussion of employer practices of rounding of time entries under both California and federal law, see Advising California Employers and Employees (Cal. CEB 2021) § 5.54C.

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