hourglass-small.jpgThis blog post was authored by Alison Kosinski 

Many employers have chosen to implement “auto-deduct” policies, which automatically deduct a set amount of time each day or shift for an employee’s meal break.  While the Department of Labor has stated that automatic deductions are lawful under the Fair Labor Standards Act (FLSA), these policies may run afoul of basic FLSA principles if employers are not careful.

The FLSA requires that employers compensate employees for all work time.  This time includes work either “suffered or permitted,” even if the employer is not actually aware that the employee is performing work.  Meal times can be tricky, depending on what an employee does while eating away.  In general, a meal period is not compensable:

“[a]s long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit . . .”

(White v. Baptist Memorial Health Care Corp. (6th Cir. 2012) 699 F.3d 869.) Rather than requiring employees to clock in and out for their meal breaks, employers may, for example, automatically deduct 30 minutes from each employee’s daily time records, or 2½ hours from their weekly records.  While this option may have some administrative advantages, employers must be careful when implementing such a policy.

For example, in Quickley v. University of Maryland Medical System Corporation, the employer hospital automatically deducted 30 minutes from employees’ daily time records for scheduled meal breaks.  Employees used a Kronos system to swipe their ID badges at the beginning and end of their work days, but did not swipe in and out for meal breaks.  The employees sued and alleged that there was no way, either on the Kronos system or otherwise, to adjust time if they worked during a meal break.  In fact, the Kronos timekeeping system provided opt-out buttons for other time missed, but not for missed meal periods.  Based on this information, the district court denied the employer’s motion to dismiss, allowing the suit to go forward.

In Quickley, the court emphasized that when an employer’s automatic deduction policy shifts the burden on to the employee to report time worked during meal breaks, the employer must make its policy clear and make every effort to assist employees in reporting their time worked during the meal breaks.

In addition, if an employer establishes a reasonable process for employees to report time worked during a meal period, then the employee must follow the process.  If he or she does not, the employer may not be liable for that time worked.  This was the lesson from White v. Baptist Memorial Health Care Corporation, which we reported on our web-site.

In sum, if an agency automatically deducts meal breaks from its employees’ daily time records, it must also implement a policy and process for employees to override the automatic deduction if they work a portion or all of their meal breaks.  This policy should be easily accessible to employees and reviewed with employees during orientation and periodically thereafter.  It is advisable that employers make the procedure to override user-friendly and provide training on any technical methods for overriding automatic deductions.  We also recommend maintaining records of training provided to employees on how to override the automatic deductions.