ARTICLE
28 January 2020

Meal Break Abuse – Is It Okay To Dock Pay?

FL
Foley & Lardner

Contributor

Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.
Initially, employers should remember that wage payment is NOT solely a matter of compliance with the Fair Labor Standards Act.
United States Employment and HR
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How many readers have confronted the following scenario: 

  • 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);
  • Employees are relieved of all work duties and responsibilities during the break;
  • Employees are free to leave the work site to enjoy their meal(s); and yet,
  • 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 rife 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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