It’s the fourth quarter. Three seconds are left on the clock, and your team is losing by one point. Your place kicker confidently trots onto the field to attempt the game-winning field goal. As he does, the TV announcer says, “He’s automatic from this distance and hasn’t missed a game winning kick all year.”

Your heart sinks. You cry out “don’t jinx it!” But you know what’s coming. Wide left. You lose. ARRRGH!

Nothing is automatic. Things can go wrong. Including with the automatic deduction from compensable work time of 30 minutes for an unpaid meal period.

Commissiong v. The Center at Lincoln

On October 27, Celine Commissiong (not a typo) filed a collective action lawsuit against The Center at Lincoln seeking unpaid overtime compensation pursuant to the Fair Labor Standards Act. Among other things, the lawsuit alleges the following:

• The Center has a policy and practice of automatically deducting 30 minutes from its employees’ recorded compensable work time for unpaid meal periods.
• The Center requires employees to stay on company premises, and carry their cell phones, during meal periods so they can be contacted by their supervisors.
• The Center regularly interrupts employees during their meal periods.
• As a result of these requirements and interruptions, employees are not completely relieved of their duties during meal breaks, and they often skip meal periods entirely or end them in less than 20 minutes. (According to FLSA regulations, breaks of less than 20 minutes should be paid.)
• Employees have complained about being forced to work during their unpaid meal periods, but the policies and practices have not changed.
• Because of these deductions, employees are not paid for all overtime hours worked. (Simply put, if these 30-minute meal periods were treated as “hours worked,” the employees’ hours for the week would exceed 40, and they would be entitled to overtime for those extra hours.)

It is important to note that these are Ms. Commissiong’s allegations. The Center has not had a chance to respond, no facts have been developed regarding the claims, and the Center has not had the opportunity to present case law showing that requiring employees to remain on premises or carry their cell phones during meal periods does not (in itself) convert an unpaid meal period into compensable time under the FLSA.

But it is also important to note that what may be permitted by the FLSA may not be permitted by state laws. For example, in some states the mere existence of a policy requiring employees to remain on company premises or carry their cell phones during meal periods may, without more, create exposure for unpaid meal periods and related penalties.

When unpaid meal periods are permitted under the FLSA

The FLSA does not require that time taken by an employee for a meal be paid, as long as all of the following requirements are met:

• The meal period must ordinarily be at least 30 minutes long, or (according to some courts) longer than 20 minutes.
• The employee is completely relieved of all duty during that time.
• The meal period is free from, and uninterrupted by, work.

Lawsuits seeking pay for unpaid meal periods, and derivative claims for unpaid overtime, typically focus on the employer’s failure to completely relieve employees of duty. When this is alleged to be the result of a company policy or consistent practice, the resulting lawsuit is likely to be a class or collective action.

In the past 20 years, at least 31 lawsuits seeking recovery of unpaid overtime have been certified as collective actions under the FLSA based on allegations that the employer automatically deducted 30 minutes of compensable time for unpaid meal periods while at the same time requiring employees to eat at their workstations, be on call, or be interrupted from their meal periods when needed.

Auto-deductions for meal breaks are permissible. But the devil is in the details.

There is no definitive Supreme Court case on the subject, but most courts recognize that auto-deductions for meal periods are not inherently unlawful

However, when auto-deduct policies intersect with alleged policies or practices requiring employees to remain on premises and be on call, and those allegations are coupled with claims of widespread interrupted or missed meal periods, class and collective action exposure is likely.

Multiple federal district courts have held that an auto-deduct class or collective action can be certified if the plaintiff presents evidence that the employer (1) did not communicate to its employees that they can request the reversal of auto-deducts for meal periods, (2) did not provide them with the means (forms) to seek the reversals, and (3) made few or no such reversals during the relevant time period.

Using a bit of reverse engineering, those principles show employers how to defeat class or collective action certification for claims based on the automatic deduction of time for unpaid meal periods:

• Inform employees that they are permitted to seek reversal of any automatically deducted meal period if their duties prevented them from taking a duty-free, uninterrupted 30-minute period. Get written acknowledgements from the employees that they have been informed about this policy.
• Provide employees with the electronic or paper forms needed to request reversals and any other information they need about the process for requesting reversals.
• Periodically reiterate the policy to all employees and ensure that all new hires are aware of the policy.
• Consider having employees certify they received a 30-minute meal period without interruption or imposition of work duties each time they clock out or at the end of each pay period.

Taking these steps is not an invitation for employees to seek compensation for meal periods that the employer did not prevent, interfere with, or interrupt. If an employee seeks reversal of an automatically deducted meal period, the request should be investigated. If the investigation determines that the request is not supported (for example, the employee actually had an uninterrupted 30-minute break, or the interruptions in the break were not created by the employer), then the request should be rejected.

In addition to making it easier for employers to defend automatic-deduction claims, a policy like this will also make it easier for employers to defeat the claims of employees who did not seek reversals.

Don’t be wide left

Those 31 certified collective actions involving auto-deductions for meal periods should give you pause when considering whether to adopt an auto-deduction practice. If you are making auto-deductions and intend to continue, you should confirm that you are complying with the notification principles described above. If you are not, and if you get sued, you may need to keep your kicker on the sideline at the end of the game and have your quarterback heave a Hail Mary pass toward the end zone. And we know how that usually works out.