Labor: Are your meal break practices lawful?

Interrupted employee meal breaks could cost you under the Fair Labor Standards Act.

Are your company’s meal break practices lawful? If not, here is a hypothetical example of what it could cost you for employees earning $10 per hour who fail to receive an uninterrupted 30-minute meal break on 60 separate days:

  • 30 minutes x 60 days (during two‑year period) = 30 hours x $15 (overtime rate) = $450    
  • $450 x 2 (liquidated damages) = $900
  • $900 x 200 employees = $180,000 back pay liability

Wage and hour lawsuits and collective actions have spiked during the last several years with complaints of off-the-clock work leading the way. In the Northeast, a number of Fair Labor Standards Act lawsuits have been filed targeting the health care industry for allegedly using automatic meal break deductions in violation of federal law. Moreover, earlier this year, the California Court of Appeals validated a state meal break law statute which provides non‑exempt employees an additional hour of pay each day as a penalty for employers who fail to provide a proper meal break under state law. See UPS, Inc. v. Superior Court, 196 Cal. App. 4th 57 (Cal. App. 2 Dist. 2011).

Employers in the retail, service and health care industries are particularly susceptible to off-the-clock work claims involving meal breaks. An employer is not required to give meal breaks under federal law and meal breaks are not required under most state laws. 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
  • 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 break. The potential penalties for failing to provide an uninterrupted 30‑minute meal break are significant.

The Wage and Hour Division of the U.S. Department of Labor, 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, even if an employee is interrupted 20 minutes into their meal break to perform a minute or two of compensable work, the DOL will take the position that the employee did not receive a full, uninterrupted 30‑minute meal break and therefore the entire meal break time is compensable. As a result, the employer either owes the employee a new uninterrupted 30‑minute meal break, or the employee must be compensated for the meal break that was taken.

There is significant room for error with meal breaks for employers who automatically deduct the meal break from an employee’s pay. If an employer automatically deducts a 30‑minute meal break but the employee does not take the full meal break or their meal break is interrupted, the employer must ensure that it has proper procedures in place to either provide the non‑exempt employee another meal break or pay the non‑exempt employee for the interrupted meal break. Otherwise, the non‑exempt employee has not been compensated for all hours worked.

Automatic deductions for meal breaks from non‑exempt employees’ hours worked are lawful under the FLSA only if an employer ensures that an employee takes a full half‑hour meal break. Although automatic deductions may make sense in certain settings – an assembly line that shuts down for half an hour; a receptionist leaves for an hour and another receptionist takes his or her place – the majority of non‑exempt employees work in job settings that are more difficult to track.

Because of the growing number of lawsuits involving meal breaks as well as an increased emphasis by the Obama administration on wage and hour enforcement, employers should carefully review their meal break policies and practices, following these steps:

  • Employers who require non‑exempt employees to clock in and out for meal should ensure that employees are clocking out for a full 30‑minute meal break.
  • Employers who 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.

Although 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.

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, failure to properly provide non‑exempt employees with full 30‑minute uninterrupted meal breaks are ripe for collective actions. Employers in retail and service industries are particularly susceptible to meal break violations. 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.

Because the DOL takes the position that an employer is obligated to pay an employee for the entire meal break if they are interrupted, back pay liability can add up quickly. Assuming employees worked a 40‑hour week, an employer could be liable for 30 minutes of back pay at time and a half for each employee, for each violation. Moreover, the back pay liability can be liquidated under the FLSA’s liquidated damages provisions. 29 U.S.C. § 216(b). Take steps to avoid facing wage and hour lawsuits and collective actions. The time is ripe for all employers to review their meal break policies to ensure compliance with federal and applicable state laws.

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Charles McDonald

Charles McDonald is a shareholder in the Greenville, S.C., office of Ogletree Deakins and a member of the firm's Wage and Hour Practice Group.

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