By Daniel Kaplan
How many readers have confronted the following scenario:
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Employer provides a paid meal break to its employees (for ease of application, we are going to suggest the paid meal break is 30 minutes in length);
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Employees are relieved of all work duties and responsibilities during the break;
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Employees are free to leave the worksite to enjoy their meal(s); and yet,
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A number of employees habitually abuse the break, and routinely delay their return to production activities by an additional three minutes, ten minutes, or more.
Can the employer dock the pay of employees who are abusing the paid meal break in an amount equal to the excess amount of time they take? If the employer can do so, should it?
Initially, employers should remember that wage payment is NOT solely a matter of compliance with the Fair Labor Standards Act (FLSA). Rather, state law can (and often does) play a significant role in delineating limitations for meal break requirements. To that end, you must review your state’s rules and regulations before implementing a policy on wage payment, even if such policy is consistent with (and does not violate) the FLSA.
Turning to the FLSA, the Department of Labor (DOL) has published a helpful Fact Sheet on “hours worked” that includes guidance on unauthorized extensions of meal breaks. According to the DOL, time by which an employee has extended his/her lunch break without authorization is not work time necessitating compensation. However, this is only the case where the employer has expressly and unambiguously communicated to the employee that: (i) the authorized break may only last for a specific length of time; (ii) any extension of the break is contrary to the employer’s rules; and (iii) any extension of the break will be punished. Therefore, if an employer has an appropriate policy in place, and has communicated the policy and the adverse repercussions for violations associated with meal break abuse, the employer (at least under the FLSA) need not compensate for time beyond that authorized for the break. That is, the employer can dock the employee’s pay by the amount of time of the abuse.
Knowing that it is okay to do something does not necessarily mean it should be done. That is the case here. As noted above, many state laws may take a different approach on such a docking practice. In addition, if the DOL is investigating a complaint over pay docking without authorization, this is an area ripe for confusion and difficulty in establishing the necessary facts to support the deductions/docking. Accordingly, it is our guidance that break abuse should be addressed through performance management, not by docking pay.
Finally, while the above discussion involves a paid meal break, the same rules apply to unpaid meal breaks. However, it is also important to remember that unpaid meal breaks should not be less than 30 minutes in length (to support a lack of payment for the break). Again, this is typically a matter of state law (whether a shorter meal break can be unpaid), but even the FLSA requires 30 minutes unless certain circumstances can be established to support a shorter meal period though never one less than 20 minutes.
Daniel A. Kaplan is a partner and litigation attorney with Foley & Lardner LLP and is co-chair of the firm’s Labor & Employment Practice. Dan counsels employers in all aspects of the employer-employee relationship, including wage and hour, employment contracts, confidentiality and non-compete agreements, worker’s and unemployment compensation, family and medical leave, disability accommodations and compliance with the Americans with Disability Act, and all state, federal and local discrimination laws. Dan has experience litigating before various state and federal agencies, various state courts, and federal courts throughout the country, including the Supreme Court.