Wage and Hour Series: Meal Breaks—A Different Kind of Off-the-Clock Concern

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In this, our fifth post in this series discussion on wage and hour issues in the 21st century, we address one of the latest and greatest threats to employers in the Fair Labor Standards Act (FLSA) arena: meal breaks. Although meal break litigation is not new, some of the legal theories and larger settlements are. Wage and hour lawsuits and collective actions have spiked over the last several years with complaints of off-the-clock work leading the way. In the northeast, a number of FLSA lawsuits have been filed targeting the health care industry for allegedly using automatic meal break deductions in violation of federal law. Other cases have focused on alleged meal break violations and failing to compensate employees for interrupted meal breaks. Over the past four months, employers have settled high-profile meal break claims in amounts ranging from $460,000 to $35 million.

Plaintiffs have argued in recent cases that interrupted meal breaks or meal breaks that do not last at least 30 minutes in duration constitute off-the-clock work. They are able to bolster their cases through the use of today’s technological advances, including cell phones, smartphones, cash registers, security access card swipes, and other time recording devices, that may show non-exempt employees’ meal break interruptions. In light of these concerns, employers should ensure that non‑exempt employees’ meal breaks are not being interrupted.

Employers in the retail service and health care industries are particularly susceptible to off-the-clock work claims involving meal breaks. We have seen an increase in the number of U.S. Department of Labor (DOL) investigations involving this issue, particularly in retail and service establishments where only one or two employees may be in a store location at a given time. An employer is not required to give meal breaks under federal law, and meal breaks are not required under many state laws either. However, under the FLSA, if an employer does not wish to pay for a meal break for non‑exempt employees, the non‑exempt employees must be provided a meal break of at least 30 minutes. Additionally, the employee must be completely relieved of all duties during the meal break. Violations of federal and state meal break laws occur when employees are interrupted and required to perform compensable work during their meal breaks. The potential penalties for failing to provide an uninterrupted 30‑minute meal break are significant.

The Wage and Hour Division of the DOL, which enforces the FLSA, takes the enforcement position that any employee’s meal break is compensable when the employee does not receive an uninterrupted meal break of at least 30 minutes in duration; thus, the entire 30 minutes becomes compensable work time. A pattern of interrupted meal breaks can become costly at 30 minutes a day, especially if the 30 minutes is at the overtime rate of pay.

Automatic deductions for meal breaks from non‑exempt employees’ hours worked are lawful under the FLSA only if an employer ensures that employees take full 30-minute meal breaks. While automatic deductions may make sense in certain settings (such as on an assembly line that shuts down for half an hour or where a receptionist leaves for an hour and another receptionist takes his or her place) many more non‑exempt employees work in job settings in which breaks are more difficult to track.

Due to the growing number of lawsuits involving meal breaks as well as an increased emphasis on wage and hour enforcement, employers should carefully review their meal break policies and practices. If employers require non‑exempt employees to clock in and out for meal breaks, employers should ensure that employees are clocking out for a full 30‑minute meal break. Employers that use automatic meal break deductions should have written policies and practices in place that allow a supervisor or manager to override the automatic deduction in those situations where a non‑exempt employee does not receive an uninterrupted 30‑minute meal break. While some non‑exempt employees may view clocking in and out for meal breaks as micromanagement, it is the employer’s burden under the FLSA to accurately record all hours worked for its non‑exempt employees. For employers in the retail and service industry, make sure that you have procedures in place to address situations where non‑exempt employees’ meal breaks are interrupted. An employer can either treat the meal break as a paid meal break or provide the employee with a new 30‑minute meal break starting after the interruption of the first meal break concludes. Retail employers should be particularly observant of store locations where the only manager on duty is a non‑exempt manager or assistant manager. These employees are often interrupted during their meal breaks to address customer concerns, override a register transaction, change large bills, etc.

It is also critical for employers to have sound written policies and practices concerning meal breaks to help reduce the risk of a potential collective action. Because most employers’ meal break policies and practices are consistent throughout the company, the failure to properly provide non‑exempt employees with full 30‑minute, uninterrupted meal breaks is ripe for collective actions. In addition to the above pointers, best practices include prohibiting non‑exempt employees from taking a meal break at their work location, especially employees who have access to the public or who are particularly susceptible to being interrupted during a meal break.

Stay tuned for our next post in this series where we will discuss Records of Potential Off-the-Clock Work Violations—Smartphones, Computer Systems, and Other Electronic Devices.

Cynthia A. Bremer is a shareholder in the Minneapolis office of Ogletree Deakins, and Charles E. McDonald, III is a shareholder in the Greenville office of Ogletree Deakins.