The employees who lunch don't need to be paid

Yesterday, the 6th upheld the dismissal of an FLSA collective action, in which a group of employees had alleged that their employer failed to pay them for time spent working during their lunch breaks.

Before we discuss how the employer won this case, I think it’s appropriate to have a quick refresher on meal and rest breaks under the FLSA.

Meal and rest periods are not required by any law. Neither federal law or Ohio law requires employers to provided employees with any breaks during the work day. Federal law, however, does provide for whether meal and rest breaks are counted as “hours worked.” This distinction is important. If time is counted as “hours worked,” it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.

• Rest periods, which are considered breaks of 20 minutes or less, are counted as hours worked whether or not the break is paid. Rest breaks are customarily paid, and if they must be counted as work hours, they might as well be paid for. 
• A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: “The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”

What does it mean to be “totally relieved of one’s work duties?” The 6th Circuit falls in line with most of the federal courts in applying the “predominant benefit” test to determine whether an employee’s meal period is compensable. Under this test, the employee bears the burden to prove that the normally non-compensable meal period should be compensable because it is spent predominantly for the employer’s benefit. The key inquiry is whether the employee engaged in the performance of any substantial duties during the lunch break.

With this background in mind, let’s look at yesterday’s decision in Jones-Turner, et al. v. Yellow Enterprise Sys. [pdf].

The class involved a group of EMTs and dispatchers who claimed that they were not paid for time spent “working” during their lunch breaks. Yellow automatically designated a 30-minute slot during each 8.5-hour shift as an unpaid lunch break. EMTs in the field were not allotted a specific time period for lunch but were instructed to use down time between ambulance runs to eat a meal, and had to radio dispatch to request permission to take a lunch break at the chosen time. If an employee was unable to take a lunch break due to call volume, Yellow required the employee to submit a missed lunch slip, which the employer would review for accuracy.

The court affirmed the dismissal of the wage-and-hour claim:

Yellow required its employees to radio the dispatcher to request a lunch break. EMTs had to eat within one mile of an assigned stand-by location. If the crews were “out of unit,” they had to maintain radio contact and were subject to any available run. They were expected to answer the radio after the first call. However, there was no policy that employees remain in the truck for lunch, and plaintiffs introduced no evidence that they were ever told they had to eat in the truck. Nor do the plaintiffs cite any evidence that while on a lunch break they were required to perform duties beyond responding to a call, or that once approved for a lunch break they were frequently interrupted by radio contact.... Yellow’s policies do not indicate that the plaintiffs were engaged in substantial duties during their lunch break.

This case illustrates the importance of having a policy and process in place to know when your employees are, and are not, working. Employees need to be paid for all time spent “working.” If you have a process in place, however, by which employees must notify you of when they are working outside the norm (whether it be a lunch break, or pre- or post-shift), then you will be able to verify the claim, and pay when you can confirm that work has been performed outside the normal shift boundaries. Absent that documentation, however, you are left in a the unenviable position of having to prove a negative (the employee was not working when he says he was), which is not the position you want to find yourself in defending one of these cases.