If you follow us, you know that my 2019 New Year’s resolution was to write an FLSA e-alert each month for our readers. Let’s just take a moment to recognize that it is April — and I am going strong!
This month’s topic is automatic meal break deductions. Many employers use automatic meal deductions for subsets of employees, automatically subtracting 30 minutes to 1 hour from an employee’s recorded time under the assumption that the employee took a meal break.
So, are they legal? Yes.
Should employers use them? No.
First, some background on meal break requirements in Virginia.
- Employers in Virginia are not required to provide meal breaks. I know–it sounds crazy. That said, most employers still provide 30 minutes to 1 hour for lunch breaks as a benefit of employment.
- This issue only occurs regarding non-exempt employees, since they are subject to the FLSA’s minimum wage and overtime requirements.
Should employers use automatic meal break deductions?
As my great FLSA mentor (Victor O. Cardwell) says, “They are fraught with peril!”
- An employee may be interrupted with work tasks and then is working off-the-clock.
The FLSA requires employers to accurately record working time. If an employee’s bona fide meal period is interrupted with work tasks, and his time record is not corrected, then the employee’s time is not accurately recorded.
- Employer policies may prevent or reduce the employee’s full deduction time and, again, the employee is working off the clock.
For example, Oregon-based Reddaway Trucking Company just agreed to pay $1.5 million to a class of truck drivers who were automatically deducted 30 min for meals each day. Reddaway had a policy requiring truck drivers to stay with their trucks during loading, effectively preventing drivers from leaving their trucks to grab food.
- Employers should also be wary of the nature of its employees’ duties.
For example, it may not be feasible to automatically deduct meal periods for emergency room personnel who could be called to task at any minute, or for service technicians who may spend longer than anticipated working at certain job sites.
Can employers properly use automatic meal break deductions?
- If you want to use an automatic deduction, make sure you have clear, understandable policies that provide a mechanism for the employee to report any reduction in a meal break so working time is reported accurately.
- These policies should be in your employee handbook and posted wherever employees clock in or out.
- Train employees on reporting changes in their meal periods.
- Train supervisors and managers on FLSA requirements to ensure they do not interrupt employees during off-the-clock meal time.
- Review your other policies to ensure they do not conflict with an automatic deduction period.
Our advice is to require employees to clock out and in for meal periods. With today’s technology, such as mobile app clock-in functions, there is no excuse for not accurately recording time worked.
Further, if the employee’s resulting meal break is less than 20 minutes, you should consider compensating the employee for the full break time. Such a short break may not be considered a bona fide meal period per Department of Labor guidance.
Finally, consult with us. Our Labor & Employment team is able to review your policies and even provide the training!