Giving Breaks or Going Broke

Let Them Eat Lunch! Why Employers Must Ensure Unpaid Meal Breaks Are Uninterrupted

by Madison Miller

at Tyson & Mendes LLP

What Constitutes a Bona Fide Meal Break?

Per federal law, meal periods are not work time and are not compensable.[i]  To be considered a “bona fide meal period” an “employee must be completely relieved from duty for the purpose of eating [a] regular meal.”[ii]  An employee is not relieved from duty if he or she “is required to perform any duties, whether active or inactive, while eating.”[iii]  For instance, where an employee is required to eat her meal at her desk, she is not fully relieved from duty.  However, an employer is not required to permit an employee to leave the premises during a meal period, so long as she is otherwise completely freed from her duties.

Further, unpaid mealtime must be uninterrupted.  If an employee is required to answer work-related calls during her mealtime, it is not uninterrupted, even if she does not receive any work calls.  Simply requiring the employee to be available for work calls is problematic.  The Tenth Circuit has interpreted the phrase “completely relieved from duty” to mean “the employee’s time is not spent predominantly for the benefit of the employer.”[iv]  Where an employee “is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes” he is, in fact, working while on call.[v]

Employers have a duty to ensure employees are not performing work during meal breaks.  In Colorado, if the nature of the job or other circumstances make an uninterrupted meal period impractical, employees are permitted to consume an “on-duty” meal while performing duties, but they must be fully compensated without any loss of time or compensation.[vi]

Analysis of Commissiong v. The Center at Lincoln, LLC

In October 2023, Celine Commissiong (“plaintiff”) filed a collective action complaint in the United States District Court for the District of Colorado against her former employer, The Center at Lincoln, LLC (“TCL”).  Plaintiff worked as a Patient Care Worker for TCL in Parker, Colorado, from approximately December 2015 to April 2021.[vii]

Plaintiff alleged TCL automatically deducted 30 minutes per day from her recorded work time for “meal breaks”, despite not actually allowing bona fide meal breaks for employees.[viii]  Instead, she alleged she and other Patient Care Workers were required to remain on-duty and to perform compensable work throughout their break, “continuously subject[ing] them to work interruptions during their unpaid ‘meal breaks.’”[ix]  For example, TCL required plaintiff to stay on TCL’s premises and carry her cellphone so TCL could immediately contact her at any time, including during her meal break.[x]  As a result, plaintiff routinely spent unpaid meal breaks performing work for TCL’s predominant benefit.

Plaintiff’s complaint alleged TCL’s auto-deduction policy violated section 216(b) of the Fair Labor Standards Act (“FLSA”).[xi]  Under the FLSA, plaintiff was classified as a non-exempt employee and was paid on an hourly basis.[xii]  The complaint contended TCL knew its employees were working during unpaid meal breaks because repeated complaints were made to management, human resources, and/or supervisors about being “forced to work” during unpaid meal breaks.[xiii]  Thus, employees were routinely owed overtime wages for working in excess of 40 hours in a typical workweek, which they did not receive.

Employees’ claims to recover back wages and liquidated damages for minimum wage and overtime violations are subject to a two-year statute of limitations.  To establish a prima facie case for unpaid overtime compensation, plaintiff was required to establish by a preponderance of the evidence: (1) TCL employed her; (2) TCL was subject to FLSA’s provisions; and (3) TCL failed to compensate her as required by law.  Here, taking the allegations made in the complaint as true, plaintiff’s claim will likely satisfy the three required elements to state a prima facie claim for relief.  Even where work was not requested on meal breaks, if work was merely permitted during meal breaks, the employee must be compensated for the time worked.

FLSA imposes affirmative duties on employers to ensure compliance with the law.  In other words, it is not an employee’s responsibility to ensure she is being given uninterrupted meal breaks (where applicable) or to ensure she is being paid appropriate regular and/or overtime wages.  The law clearly states management has an affirmative duty to “exercise its control and see that the work is not performed if it does not want it to be performed,” and management “cannot sit back and accept the benefits without compensating for them” as management has the power to enforce the rules and “must make every effort to do so.”[xiv]  “In reviewing the extent of an employer’s awareness, a court ‘need only inquire whether the circumstances … were such that the employer either had knowledge [of overtime hours being worked] or else had the opportunity through reasonable diligence to acquire knowledge.”[xv]  Thus, an employer cannot be willfully ignorant of its employees performing compensable work during meal breaks.

In an opinion issued on October 31, 2023, the United States District Court for the District of New Mexico, also in the Tenth Circuit, found while an automatic deduction for a meal break is not in itself a per se violation of FLSA, “an employer’s expectation that employees remain on call during their meal breaks, in combination with an automatic meal break deduction policy, has been found to be sufficient to support conditional certification [of a collective action].”[xvi]  Likewise, an auto-deduction policy “that placed the burden of correction on hourly employees [when] Defendants were aware of, permitted, and/or demanded that employees continue to work during unpaid meal periods, and Defendants routinely ignored or discouraged the use of time adjustment forms to reverse the automatic deduction” was deemed sufficient to support conditional class certification.[xvii]

The burden to guarantee just and fair compensation for all time worked rests solely with the employer.  Ignorance is not a defense to a wage claim for overtime violations.  Employers must put safeguards in place to adhere to FLSA’s standards.  Otherwise, they will face exacting burdens in litigation to prove they took all reasonable steps to comply with the law.

Takeaway

FLSA imposes strict expectations on employers to ensure employees are paid for all compensable time.  Specifically, employers must take reasonable precautions to ensure employees are not performing work duties while off the clock.  Employers with appropriate policies and protections in place are much more likely to successfully defend against a claim for unpaid wages than those who cut corners and shirk their responsibilities.  Employers will undoubtedly benefit from a commitment to responsible recordkeeping and strict adherence to FLSA’s directives.

Sources

[i] Breaks and Meal Periods, DOL, https://www.dol.gov/general/topic/workhours/breaks (last accessed Dec. 6, 2023).

[ii] 29 CFR § 785.19 – Meal.

[iii] Id.

[iv] Bates v. Dept. of Corrections of State of Kan., 81 F.3d 1008, 1011 (10th Cir. 1996) (An employee is entitled to compensation for mealtimes when he cannot enjoy his meal because his attention is focused on work responsibilities).

[v] 29 CFR § 785.17 – On-call time.

[vi] Colo. Minimum Wage Order No. 35, 7 Code Colo. Regs. 1103-1(7).

[vii] See Plaintiff’s Complaint at ¶ 13.

[viii] See id. at ¶¶ 5, 7.

[ix] See id. at ¶ 8.

[x] See id. at ¶ 54.

[xi] See id. at ¶ 10; see also 29 U.S.C. § 216(b).

[xii] See Plaintiff’s Complaint at ¶ 14.

[xiii] See id. at ¶ 61.

[xiv] 29 CFR § 785.13 – Duty of Management.

[xv] Schneider v. Landvest Corp., No. 03CV02474WYDPAC, 2006 WL 322590 at *21 (D. Colo. Feb. 9, 2006) (quoting Reich v. Dept. of Conservation and Natural Resources, State of Alabama, 28 F.3d 1076, 1082 (11th Cir. 1994)).

[xvi] Flynn v. Colonial Mgmt. Grp., No. 1:23-cv-00128-MIS-SCY, 2023 WL 7165194 at *10 (D.N.M. Oct. 31, 2023) (internal citations omitted).

[xvii] See id.