Give Me a Break! Allowing Employees to Work Over Lunch Can Be Expensive

Give Me a Break! Allowing Employees to Work Over Lunch Can Be Expensive

Employers across the U.S. are learning costly lessons from inattention to their employee meal period policies and practices. Plaintiffs' lawyers have voracious appetites for filing class action lawsuits involving interrupted or missed meal periods. In recent years, those lawsuits have resulted in several multi-million dollar verdicts against companies. To avoid this kind of liability, employers must: understand what the law requires; audit and, where necessary, correct their meal period policies; and actively monitor their employees' meal period and timekeeping practices.
 
Most employers are required to comply with the federal Fair Labor Standards Act (FLSA) which, among other things, requires payment of time and a half when non-exempt employees work over 40 hours in a week. The FLSA does not require employers to give meal or rest breaks to employees. However, it does require that when employers allow employees to take breaks they must be paid unless they are "bona fide" breaks lasting at least 30 minutes during which the employees are "completely relieved of duty." Employers do not have to permit employees to leave the company's premises in order to make the meal breaks unpaid, nor does the FLSA require that a meal break be paid simply because the employee is required to carry a pager or cell phone or remain on call during the break.
 
Under the FLSA, infrequent interruptions of an employee's meal breaks will not prove that they are not "bona fide" or require that they be paid (although the employee must be paid for that portion of the break period in which they are called to duty). However, if an employee answers phone calls, responds to emergencies or performs work during meal breaks on more than an occasional basis, the employer may not treat any of that employee's meal breaks as unpaid. Consequently, if an employee is scheduled to work 40 hours in a week with a 30 minute unpaid lunch break each day which frequently is interrupted by work responsibilities, the employee may be entitled to two and a half hours of additional pay each week at the time and a half overtime premium rate. Is an employee entitled to be paid for working during a meal break without being asked to do so by the employer? The federal law requires that the employee be paid if he was "suffered or permitted" to work during the break. Courts have interpreted this phrase to mean that if a supervisor or anyone else in management knew or should have known that the employee was working during a break period, even if not affirmatively asked to do so, the employee is entitled to be paid.
 
To further complicate matters, many states have wage laws imposing stiff penalties on employers who fail to pay all wages owed to employees. A few states even have separate laws requiring meal periods for employees. For example, California's Labor Code Section 512 requires that each non-exempt employee receive one uninterrupted, duty-free meal period lasting at least 30 minutes for every five hours worked. Unlike federal law, California law requires that employees be free to leave the employer's premises. Employers are assessed a penalty of one hour of pay for every meal period violation. Oregon and Washington state laws also require employers to provide 30 minute meal breaks, whereas New York law requires 60 minute breaks for factory workers and 30 minutes for all others.
 
Employers providing unpaid meal breaks should have policies expressly stating that they expect employees to take their full meal breaks and perform no work during those breaks except in case of emergency or request by their supervisor. The policies also should inform employees that the company expects to pay them for all of their working time and should instruct them as to the procedures they are to follow to insure that their time records accurately reflect when working during meal periods. Employers who automatically deduct meal breaks from their employees' working time have been successfully challenged in class action lawsuits when they cannot show that they have made available to employees a reasonable protocol for correcting time records when they work during breaks.
 
Employers may not lawfully withhold pay from employees for meal break or overtime work they performed simply because the employers did not authorize it. Instead, employers should counsel employees that they are expected to comply with meal and overtime policies and should impose appropriate discipline for repeated violations. However, as recent cases in Illinois and Alabama have shown, employees fired for repeated unauthorized meal period or overtime work may file retaliation lawsuits accusing their former employers of firing them because they complained about not being paid for such work. Thus, it is imperative that employers establish well-publicized procedures available to their employees for complaining to management about non-payment for meal periods or overtime worked, along with other violations of their rights as employees. Employers must properly document such complaints, investigations and findings, as well as all reminders and disciplinary measures imposed on employees for working without permission during meal breaks or on overtime.
 
For more information on employee meal period policies contact Skip Adams at (317) 236-2117 or wayne.adams@icemiller.com or any member of Ice Miller’s Labor and Employment Group.
 
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.