To Pay or Not to Pay: Rest and Meal Breaks
Our wage and hour practice attorney is extremely knowledgeable in meal and rest break law under the FLSA. We handle these cases nationwide with our principal office located in St. Louis, Missouri. Our insight into and knowledge of the nuanced meal and rest break rules and regulations has proven invaluable to our clients.
The compensability of breaks and rest periods during the workday is a hotly litigated issue across the country. Many disputes have arisen wherein employees have claimed that they were effectively forced to work through or during unpaid breaks.
The Compensability of Rest and Meal Breaks
While most employers provide some form of unpaid or paid breaks during the workday, there is no requirement under federal law for employers to do so. Related, but distinct, considerations are at play when a dispute arises about the compensability of break periods. Generally, it is well-established that employers must pay employees for all time spent at work "from whistle to whistle." However, that's not the end of the story.
Meal Break Compensability Law
The United States Department of Labor first promulgated a regulation that provided "bona fide meal periods are not worktime… [but t]he employee must be completely relieved from duty for purposes of eating regular meals… [and t]he employee is not relieved if he is required to perform any duties, whether active or inactive, while eating." 29 C.F.R. § 785.19 (noting that "[o]rdinarily 30 minutes or more is long enough for a bona fide meal period" but that "[b]ona fide meal periods do not include coffee breaks or time for snacks. These are rest periods"). This regulation resulted in a legal standard that, for employers to avoid having to pay employees during meal breaks, employees must be "completely relieved" from any active or inactive duties.
But, over time, most federal courts moved away from this legal standard. See, e.g., Henson v. Pulaski Cty. Sheriff Dept., 6 F.3d 531, 534-35 (8th Cir. 1993). Most federal courts have instead adopted some version of what has become known as the "predominant benefit" test. Id. Under that test, the standard question is whether the meal break was "spent predominantly for the benefit of the employer"—that is, "a question dependent upon all the circumstances of the case." Id. This standard "allows courts to consider different factors depending on the nature of the business involved." Id.
Even under this "predominant benefit" standard, courts continue to vary quite a bit in how they treat and analyze unpaid meal break claims. Some courts have emphasized the employer's statutory duty to make and maintain accurate record of hours worked in the context of questions about what, if any, time was spent during a break for the benefit of the employer. See, e.g., Reich v. Southern New England Telecomm. Corp., 121 F.3d 58, 66-68 (2d Cir. 1997).
In Reich, the Second Circuit Court of Appeals affirmed the district court's finding that a group of employees made out a prima facie case of unpaid meal breaks based on the employer's meal break policies and representational evidence of unpaid work during meal breaks. Id. at 68. The Court rejected the employer's claim that the district court erred in not making detailed findings on the nature and extent of interrupted or shortened meal periods. Id. at 69. In doing so, the Court emphasized the employer's statutory duty to make and maintain accurate record of when work was performed, including during meal breaks. See id. Because the employer did not make and maintain such records, the employees needed "only to prove that they performed work for which they were not properly compensated and produce 'sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id. Facing "over-inclusive" evidence from the employees on the amount and extent of unpaid work, and "under-inclusive" evidence on the same from the employer, the district court sided with the employees. Id. at 70. On appeal, the Second Circuit affirmed the district court, finding no error and noting that, while "the award might have been somewhat generous…[i]t simply points out the difficulty of precisely determining damages when the employer has failed to keep adequate records." Id. at 70, n. 3; see also Hamelin v. Faxton-St. Luke's Healthcare, 274 F.R.D. 385, 398 (N.D.N.Y. 2011) (certifying class action on claims of unpaid meal breaks due to automatic meal break deductions and policies).
Notwithstanding variances in how courts view and analyze these cases, it appears to be clear that the mere existence of a policy requiring an employee to inform management of a missed break does not relieve an employer from its obligation to provide compensation for that time. Nearly all courts (and the Department of Labor) seem to agree on the following principles: it is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. Employers cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.
Automatic Meal Break Deductions in Healthcare
Automatic meal break deductions are a matter of frequent litigation relative to the healthcare industry, particularly involving nurses and other healthcare workers at hospitals, nursing homes and other healthcare facilities. Hiring experienced and knowledgeable counsel is important in understanding the legal issues and challenges surrounding automatic meal break deductions within the healthcare industry. Our firm has extensive, sophisticated knowledge and experience as to automatic meal break deduction issues specific to healthcare nationwide, through our principal office in St. Louis, Missouri.
The many issues commonly disputed in automatic meal break deduction cases, include the lawfulness of computerized timekeeping system configuration of such deductions, how the deduction is utilized in practice and what instruction and policies are utilized in implementing the deduction.
We have sophisticated knowledge and understanding of how proprietary time and attendance software systems process automatic meal break deductions. Our attorneys commonly review, analyze and audit hourly employee punch data, as we know how to read and evaluate timekeeping and payroll records from a wage and hour compliance perspective. Timekeeping and payroll systems commonly maintain data in certain readable formats, such as timekeeping and exception rules, bonus and deduction rules, break rules, earnings, pay and deduction codes and other payroll deduction information. The systems commonly utilized in healthcare that we have knowledge and insight into from a wage and hour law perspective include Kronos, ADP, Workday, Asure, Paycor, WorkForce, and SAP.
Whether any given automatic meal break payroll deduction is ultimately determined to be legally compliant or not, varies depending upon the circumstances surrounding the particular healthcare workplace and the practices and configurations through which the automatic meal break deduction is implemented.
Automatic Meal Break Deduction Considerations in Healthcare
The Fair Labor Standards Act (FLSA) does not necessarily prohibit employers from automatically deducting a meal period from hourly employees' pay during work shifts. However, a number of requirements and considerations necessarily need to be in place for this practice to be lawful. These include ensuring employees are totally freed from performing job duties, employees are allotted scheduled time for uninterrupted breaks, pager and Ascom systems are not available for answering calls during breaks, company policies as to the practice are sufficiently clear and understood by employees, and that a reasonable procedure to report shortened or interrupted breaks and to reverse the automatic deduction is carefully explained and available to employees.
The United States Department of Labor (DOL) has provided specific guidance to healthcare providers in understanding the legal compliance considerations surrounding automatic meal break deductions. The DOL has been consistent in stating that "[w]hen choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break." Dep't of Labor, Wage & Hour Div., Fact Sheet #53 – The Health Care Industry and Hours Worked (July 2009).
The law imposes specific requirements for automatic meal break deductions due to the employer's non-delegable duty to make and maintain accurate timekeeping records. See, e.g., Quickley v. Univ. of Md. Med. Sys. Corp., 2012 WL 4069757, at *5 (D. Md. 2012); Camesi v. Univ. of Pittsburg Med. Ctr., 2009 WL 1361265, at *4 (W.D. Pa. May. 14 2009) (certifying automatic meal break deduction class raising questions as to the lawfulness of the employer's policy that shifted timekeeping burdens onto healthcare workers); Mares v. Caesars Entm't, Inc., 2007 WL 118877, at *4-5 (S.D. Ind. Jan. 10, 2007) (certifying class based upon unclear automatic meal deduction policy).
Implementation of automatic meal break deductions does not violate the FLSA so long as the employer accurately records employees' hours actually worked. White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 873 (6th Cir. 2012) (noting legal principles relevant to automatic meal deduction systems under the FLSA); Creely v. HCR ManorCare, Inc., 920 F. Supp. 2d 846, 856 (N.D. Ohio 2013) (addressing class certification considerations in meal break claims). In White, the Sixth Circuit reasoned that, if an employer establishes a reasonable process for reporting "uncompensated work time," the employer is not liable for non-payment when the employee "fails to follow the established process." 699 F.3d at 876. According to the White court, "[w]hen the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer's ability to comply with the FLSA." Id. Within this analytical framework, the court concluded "there was no way [the defendant employer] should have known [the plaintiff employee] was not being compensated for missing her meal breaks" under the facts of that case, even though the plaintiff may have "occasionally told her supervisors that she was not getting her meal breaks." Id.
However, courts have found that "[w]hen the employer's automatic deduction policy shifts the burden to employees to report time worked during meal breaks, the policy must be made clear to employees, and the employer must make every effort to facilitate reporting opportunities." Quickley v. Univ. of Maryland Med. Sys. Corp., Civ. No. CCB-12-321, 2012 WL 4069757, at *5 (D. Md. Sept. 14, 2012); Valcho v. Dallas Cnty. Hosp. Dist., 574 F. Supp. 2d 618, 623-24 (N.D. Tex. 2008). An employer may not discourage or prevent employees from reporting work during meal periods. White, 699 F.3d at 876; Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827 (5th Cir. 1973).
Please do not hesitate to contact our firm directly to gain more information and understanding about FLSA and state law rest and meal break rules, requirements, and considerations. Dolley Law, LLC can be reached by calling (314) 293-4884.