An employer will pay nearly $1.2 million to resolve claims that it created wage and hour violations by automatically deducting a lunch break from workers’ hours, the U.S. Department of Labor (DOL) has announced.
Unicon, Inc., which rounds up live chickens for poultry processors, assumed that its “chicken catchers” and van drivers took a lunch break each day. That assumption led not only to unpaid wages but also Fair Labor Standards Act (FLSA) recordkeeping violations, the DOL determined during an investigation.
The DOL also found that Unicon failed to pay workers for time they spent on work activities prior to the start of the actual catching process, and failed to pay crew leaders for time spent picking up crew members and cleaning company vans.
To resolve these claims, Unicon agreed to pay almost $600,000 in back wages and an equal amount in liquidated damages, the DOL said. The settlement will be shared by 838 employees.
“This agreement goes a long way to ensure that Unicon’s workers are made whole by providing the wages they earned. It also levels the playing field for other employers in this industry,” said Mark Watson, Administrator of the Wage and Hour Division’s (WHD) Northeast Region, in a press release.
Employer Takeaway
During President Obama’s administration, the WHD’s administrator assured employers that such “exceptions timekeeping” was perfectly fine.
A WHD administrator who served under President George W. Bush, however, spoke out against that declaration, warning employers that it may set them up to violate that law’s requirement to maintain “complete and accurate” time records. For the full story, see Exceptions Timekeeping Is Legal—But It’s a ‘Horrible’ Idea.
At the very least, FLSA regulations clearly require that employers have a worker confirm “by check mark, statement, or other method” that he or she actually worked the prescheduled hours. Whether that means recording a total (for example, “8 hours”) or clock time (for example, 9 a.m. to 5 p.m.) is unclear. It’s also unclear whether an employee would need to report a deviation that didn’t change his or her total hours worked (for example, starting late at 9:15 a.m. but staying until 5:15 p.m.).
Kevin McCormick, a partner at Whiteford, Taylor & Preston and an editor of the Maryland Employment Law Letter, recommends that employers err on the side of caution. Failing to record exact work times could, at the very least, cause a judge or jury to question the reliability of your records, he previously told BLR®.
But if you’re committed to using the DOL’s “exceptions reporting,” at least ensure that your form makes it easy for employees to report schedule deviations. For example, include a column called “extra work” and encourage employees to note when they work through lunch or answer e-mails from home, McCormick said.
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |