Lunch and Breaks—’Little’ Violations, But Fines Add Up Quickly

Wage/hours violations like lunch break payments seem like small potatoes, but multiply by 250 days a year and a thousand employees and add penalties—you’ve got a big-dollar fine.

Common Violation #3—Meal Breaks

Bona-fide meal periods (typically 30 minutes or more) are not work time, and an employer does not have to pay for them. However, the employees must be completely relieved from duty.

When choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break. If employees are expected to do work during lunch, for example, answer phones or sit at the reception desk, they are probably not “relieved from duty.”

Example: Automatic deductions

An employer automatically deducts one-half hour for meal breaks each shift. Upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. Does this practice comply with the FLSA? Yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.

Note: Automatic deductions must be carefully monitored; it’s the rare employee that isn’t sometimes asked to do some work during the break.

Common Violation #4—Other Breaks

Rest periods of short duration, generally running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as work time. It is immaterial with respect to compensability of such breaks whether the employee drinks coffee, smokes, goes to the rest room, etc.

Example: Three 10s?

Many third shift employees who smoke prefer to take three ten-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute the smoke breaks for their meal break? No, the employee must be compensated for the smoke breaks.

Common Violation #5—On-Call Time

An employee who is required to remain on call on the employer’s premises or so close to the premises that the employee cannot use the time effectively for his or her own purpose is considered working while on-call.

An employee who is required to carry a cell phone, or a beeper, or who is allowed to leave a message where he or she can be reached is not working (in most cases) while on-call. Additional constraints on the employee’s freedom could require this time to be compensated.

Common Violation #6—Unauthorized Hours Worked

Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked.

Example: Doing It on Her Own

Rather than stay late in the office, an hourly paid office clerk takes work home. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even though she worked at home and the time was unscheduled.

Are class action lawyers peering at your pay practices? Its likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLRs easy-to-use FLSA Wage & Hour Self-Audit Guide. Try it for 30 days … on us.

Wage and hour—it should be easy, but it’s trickier than it appears. How confident are you that your wage and hour practices aren’t under review by the feds or, maybe worse, your employee’s attorney? Are your “independent contractors” independent? Are your “exempt employees” actually exempt? To ask the question another way, “How many FLSA violations exist at your workplace?”

Bottom Line: Audit Before THEY Do

“They,” in this case, might be the feds, lawyers, or even bankers deciding you don’t get that loan because improperly classified workers represent a huge potential liability.

Experts say that it’s always better to do your own audit, and fix what needs fixing, before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. Fortunately, there are aids that make FLSA self-auditing relatively easy.

What our editors strongly recommend is BLR’s FLSA Wage & Hour Self-Audit Guide. It is both effective and easy to use and even won an award for those features. Here’s what customers like about it:

—Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated the FLSA’s endless legalese into understandable terms.

—Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.

All you need to avoid exempt/nonexempt classification and overtime errors, now in BLRs award-winning FLSA Wage & Hour Self-Audit Guide. Find out more.

—Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.

—Convenient. Our personal favorite feature: A list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.

—Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s FLSA Wage & Hour Self-Audit Guide includes all the changes.

You can examine BLR’s FLSA Wage & Hour Self-Audit Guide for up to 30 days at no cost or obligation. Go here and we’ll be glad to arrange it.

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