IMPORTANCE OF DOCUMENTING MEAL BREAK VARIANCES TO REBUT PRESUMPTION OF VIOLATION

Posted: March 11, 2021 | News

You may recall a few weeks ago we provided an update about an important new case, Donohue v. AMN Services, LLC, and its impact on rounding practices. You can read more about the underlying facts of the case here. We are highlighting Donohue again to further explore another significant issue affected by the case—missed, late, or short meal breaks.

Reminder of Key Rules for Meal Breaks

  1. A first meal break must be provided prior to the start of the fifth hour of work unless the workday is completed in six hours or less and the employee chooses to waive the meal break.
  2. Meal breaks must be at least 30 minutes.
  3. Meal breaks must be uninterrupted, and the employee must be relieved of all duties and free to leave the job site.
  4. A second meal break must be provided for shifts longer than 10 hours generally. Your employment counsel should be consulted for additional details.
  5. If any of these rules are broken, you must provide the employee with one hour of extra pay as a premium.

Impact of Donohue

Donohue states that if an employee's time records show a late, missed, or shortened meal break, then it is presumed that the employee did not receive a compliant meal break. This is a "rebuttable" presumption, meaning liability is not automatic but rather the employer may present evidence of "bona fide relief from duty or proper compensation." In other words, the employer must show the employee was provided the opportunity to take a compliant break but voluntarily chose not to, or that the employee received premium pay. Without records to prove this, the employer is deemed in violation of the meal break law.

What Does Donohue Mean for Your Business?

If your employee chooses to clock in a few minutes early from lunch or leaves for lunch a few minutes after the start of the fifth hour of work, the court will presume it was not the employee's choice. You must have records to prove this non-compliant meal break was voluntary, or records to prove that the employee was paid one hour of meal break premium pay.

There are several ways to document this. In Donohue, the employer used a drop-down menu on the digital time clock to identify the reason for the non-compliant meal break. If configured correctly, a drop-down menu could be an acceptable method. A properly worded acknowledgement signed by the employee on a paper timesheet is another option that will help to reduce the risk of liability.

Premium pay for meal breaks should be identified as a separate line item on pay stubs. It is recommended that you consult with your employment attorney to determine how and whether your recordkeeping practices can be changed to minimize your risk of liability.

This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.