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The Fair Labor Standards Act
There Ain’t No Free Lunch
By Sheri McWhorter
Are your employees eating lunch at their workstations? Do they answer business calls during lunch? Do you automatically dock your hourly employees for a 30 or 60 minute meal break each day? If so, beware. You could find yourself liable for huge unpaid overtime and back pay liability under Fair Labor Standards Act (FLSA).
One of the most troublesome and frequently cited employer violations under the FLSA involves employee meal breaks. If you are sued by an employee or audited by the U.S. Department of Labor, the burden is on you, as the employer, to prove the actual hours worked by your hourly employees. Assembling this proof can be tough where meal breaks are in dispute. If, at any time up to two (sometimes three) years later, one or more of your employees claim they frequently worked through lunch, you will be faced with trying to prove that each employee actually took a full and uninterrupted meal break each and every day – difficult, to say the least. An unsuccessful defense can cost your company millions in back pay awards and double (liquidated) damages, plus attorneys’ fees for the company and for the successful employee litigant.
Contrary to what many employees believe, neither the FLSA (federal law) nor Florida law requires employers to allow employee rest breaks or meal breaks (except in cases where child labor laws apply, discussed in a previous BABM issue). In Florida, there is no requirement that employees receive a 15 minute break morning and afternoon break, and a 30 to 60 minute meal break in the middle of their shift. Any and all work breaks are a matter of agreement between the employer and the employee (or the employee’s representative, for example, where a union is present in the workplace).
Even though not required by law, most Florida employers allow employees short breaks throughout the workday. Time spent in breaks of less than 20 minutes must be counted towards hours worked, and must be paid. In addition, many employers allow employees lunch or meal breaks of 30 minutes or more. Only “bona fide” meal breaks may be excluded from time worked and thus unpaid. Bona fide meal breaks are not working time under the FLSA. Rather, bona fide meal breaks are those breaks where an employee is relieved from all duties for the purpose of eating regular meals. Meal breaks are considered “bona fide” and not included in hours worked (and not paid) where the following conditions are met.
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First, the meal break must be long enough for the employee to eat or to use the time for the employee’s own purposes. Most meal breaks are 30 minutes or longer.
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Second, the employee must enjoy the meal break uninterrupted.
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Finally, the employee must be completely relieved of duty, and neither required, nor permitted, to perform any work-related tasks during the meal break.
Work breaks such as coffee or snack breaks serve a completely different purpose than “bona fide” meal breaks. Most work breaks are between 5 and 15 minutes. Under the FLSA, those types of work breaks are considered rest periods and, where the breaks are less than 20 minutes long, must be treated as actual hours worked and thus paid. The hours must also be included in the total hours worked for that week, and must also be considered in determining whether overtime is due.
Problem areas and frequent subjects of FLSA lawsuits related to meal and work breaks include situations where companies automatically dock hourly employees for a 30 minute meal break each day, regardless of whether or not the employees actually took the break, completely relieved of all work requirements and job duties. Another problem area is where employers require (or tacitly allow) employees to work through unpaid meal breaks. Where an employee “works through lunch,” that time is not considered a meal break – it is work time and must be paid and counted towards overtime for the week. Where an employee eats at his desk while answering phones, working online, etc., that employee is not taking a “bona fide” meal break, and must be paid. It is a violation of the FLSA to allow employees to “voluntarily” work through lunch without pay.
By carefully monitoring FLSA compliance and maintaining accurate records of employee meal and break periods, companies may avoid facing the millions of dollars in back pay and unpaid overtime liability that have plagued some of the giants of industry.
About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegalSolutionsSM, Law Offices of Sheri D. McWhorter, P.A. With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area. For more information, contact Ms. McWhorter at 813.321.7383 or 727.388.5383, or visit WorkplaceLegalSolutions on the web at www.workplacelegalsolutions.com.
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