hourglass-small.jpgMany 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.

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Photo of Alison Kalinski Alison Kalinski

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful…

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful termination, failure to accommodate, defamation, First Amendment, and due process violations from employees.  In addition, Alison defends schools in litigation on student issues, including disability discrimination, failure to accommodate, breach of contract, and defamation claims. Alison has argued before state and federal courts and the California Court of Appeal and has obtained a workplace violence restraining order to protect employees.

Alison Kalinski also regularly advises independent schools, including religious schools, nonprofit organizations, and public agencies in matters pertaining to employment and students. Alison is a trusted advisor to employers in all aspects of employment issues, including the hiring and termination of employees, the interactive process and leave requests, discrimination and harassment issues, assisting with investigations, overtime, and drafting employee handbooks and agreements.  In addition to employment advice, Alison counsels schools on student and parent issues, including bullying, student discipline, accommodating disabilities, enrollment agreements, student handbooks, parent and tuition disputes, and subpoenas. Alison especially enjoys working with schools and nonprofit clients by helping them meet their legal obligations while achieving their mission and maintaining the values of their school and organization.

Alison is also an experienced presenter and regularly trains clients on preventing discrimination, harassment, and retaliation in the workplace, accommodating disabilities in the workplace, mandated reporting, and other employment matters.

Prior to joining Liebert Cassidy Whitmore, Alison practiced as a litigator in the New York City offices of two international law firms before relocating to Los Angeles.  At her prior firms, Alison represented large private employers in class action litigation arising from gender discrimination and wage and hour matters, and obtained a full dismissal of all claims in both actions.

Committed to pro bono work, Alison obtained cancellation of removal under the Violence Against Women Act for a victim of domestic violence and sex-trafficking and obtained asylum for a refugee from Cameroon who was tortured for being a homosexual.

While in law school, Alison served as managing editor of the Tulane Law Review.  Upon her graduation magna cum laude, Alison clerked for the Honorable Steven M. Gold in United States District Court for the Eastern District of New York.  Alison is admitted to practice in California and New York.