Are nonexempt employees working off the clock during meal breaks?
By Jonathan A. Segal
As a general rule, the Fair Labor Standards Act (FLSA) does not require that employees other than minors receive any breaks, whether paid or unpaid. Rather, FLSA regulations set forth only when breaks must be paid if they are offered at an employer’s sole discretion.
With regard to meal breaks, the regulations ordinarily provide that an employer must pay if the break is fewer than 30 minutes. The regulations leave open the possibility that shorter meal breaks may be noncompensable in cases with special circumstances.
Some states require 30-minute meal breaks for workers. Even in those cases, however, the meal break can be unpaid.
It’s not as simple as scheduling 30-minute, unpaid meal breaks for nonexempt employees, though, as some of the scenarios described in this article show.
About 10 years ago, there was a wave of claims related to meal breaks. We are in the middle of another wave now, with many of the claims involving off-the-clock work during meal breaks. The following examples of common wage and hour scenarios illustrate how the seemingly simple can be legally complex, and they provide suggestions for avoiding legal liability.
Scenario 1: 30-Minute Break
An employee takes her 30-minute break at her desk so she can be alone and read. But if the phone rings, she will answer it. And if her manager asks her work-related questions during the break, she responds. Is her lunch compensable?
Generally speaking, the 30 minutes must be uninterrupted by work to be unpaid under the FLSA. If an employee works during the meal break, the worker generally must be paid.
Make sure all employees know that they cannot do any work during a meal break. And make sure managers know that if they ask an employee to do any work during the break, they must follow a process to ensure the employee is properly paid.
Yes, the FLSA provides for a de minimis exception. But what constitutes de minimis is determined in the aggregate: looking at the amounts day after day. Plus, some states, such as Pennsylvania, do not recognize the de minimis exception.
Scenario 2: Remain Onsite
Suppose employees have a 60-minute meal break but are told to remain on the premises in case they are needed for an emergency.
Under some state laws, such as Oregon’s, the employer must pay employees for any time they are required to remain on the premises. That the break is 60 minutes and the employee does not do any work during that time is irrelevant. So don’t forget to check state law, and be sure to pay as may be required by such law if employees are told to remain onsite.
Scenario 3: Eagerness to Return to Work
Suppose, instead, employees are given a 30-minute meal break but some employees start working after only 20 minutes because they are anxious to get their jobs done.
Tell employees they cannot start work until they have taken a full 30-minute break. Perhaps block them from logging back in from the meal break until after 30 minutes have passed. (That assumes employees will log in and out; sometimes they don’t.)
Scenario 4: Automatic Deductions
An alternative to blocking employees from logging back in early is to set up an automatic deduction from their pay. This way, there is no need for employees to log in and out.
Automatic deductions are not unlawful under federal law, but they are high-risk. And the risks are even higher under many state laws.
It is better to have employees log in and out. Of course, that creates another issue—namely, what if logging in is by way of clocking and employees have to wait in line to clock back in? Yes, there now are “waiting to clock back in” claims.
In this case, move or add clocks as needed. Consider extending the length of the break to 35 minutes so clocking in can occur over a five-minute time period without lines, and pay as soon as employees clock back in.
Scenario 5: Attestation
One way to mitigate the risk of automatic deductions is to have employees attest each day that they had a 30-minute, uninterrupted meal break and pay them if they respond that they cannot so attest. Even if there is no automatic deduction, the attestation is still recommended as a way to limit exposure to a claim later made by an employee that meal breaks were short or interrupted.
Scenario 6: See Something, Say Something
Suppose an employee attests each day to having had a 30-minute, uninterrupted meal break. But his manager knows, or should know, that he is taking shorter breaks or working during his breaks.
Managers need to receive training that if they become aware of off-the-clock work—and that includes, but is not limited to, working during an unpaid meal break—they must report it to HR and payroll. “See something, say something” applies to off-the-clock work, too.
Scenario 7: State vs. Federal Law
State law may require a meal break shorter than 30 minutes and provide that it can be unpaid. For example, Illinois law requires at least a 20-minute, unpaid meal break if the nonexempt employee works a shift of 7.5 hours or longer.
Providing a break in these circumstances is no longer discretionary, as it is under the FLSA. But the mandated unpaid break under Illinois state law still must be paid under the FLSA, so employers should either pay for the 20 minutes or extend the break to 30 minutes to avoid paying for it. State law cannot be a defense to violating federal law.
By now, you’re probably thinking you need a break from talking about breaks. I get it; me, too! I never dreamed I would spend so much time working through break issues with clients.
But please take the time to focus on these and other employee meal break scenarios. Otherwise, your meal breaks may turn out to be painfully expensive when you consider not only the cost of defending the class or collective action, but also the potential for liability.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.