Tag Archives: Break (work)

Is Your Company’s “Flexible Scheduling” Policy a Violation of Wage and Hour Law?

Contributed by Amanda Biondolino, October 25, 2017

An employer who allows its employees the “flexibility” to self-schedule time off the clock must make sure that it is paying its employees for all time worked. And beware, under the Fair Labor Standards Act (FLSA), “hours worked” is not limited to only that time an employee spends performing his or her job duties. Short breaks of twenty minutes or less are also counted as hours worked and must be paid.

The Third Circuit Court of Appeals recently held as a bright-line rule: Where breaks of twenty minutes or less are in question, the time must be paid. The court adopted the U.S. Department of Labor policy rationale that “breaks of twenty minutes or less are insufficient to allow for anything other than the kind of activity (or inactivity) that, by definition, primarily benefits the employer.” There will not be a factual analysis, or a case-by-case determination. Simply stated, if an employee is at the worksite, and is taking time away from their work-related duties for twenty minutes or less, they must be compensated for that time.

In the case decided by the Third Circuit, the employer did not deny that it permitted its call-center employees to log off their computers and use their time free from any work related duties, but it refused to call those time periods “breaks.” Rather, the employer considered it part of a “flexible time” policy, in which employees could take an unlimited amount of unpaid time away from work at any time, for any duration, and for any reason.

The court rejected the employer’s attempt to characterize time in a way that deprived employees of rights they were entitled to under the FLSA and considered the time an employee spent logged off the computer as a “break.” The employer violated the FLSA by not compensating employees for breaks that lasted twenty minutes or less.

Bottom Line: This is a reminder to employers that all policies and procedures should be vetted by experienced labor and employment counsel. In addition, all time worked including break periods should be accurately recorded, not only to comply with the record-keeping requirements of FLSA, but to document any abuse.

Employers should also keep in mind that some states may have their own break requirements that employers in those states must follow. Therefore, it is imperative that employers review their break policies and check applicable laws to ensure compliance with both federal and state law.

Although federal wage and hour laws do not generally mandate employee breaks, and state laws may vary, a strict policy that forces employees to choose between getting paid and basic necessities such as using the restroom runs contrary to “humanitarian and remedial” purpose of the act and will violate the law. These kinds of short breaks must be compensated. The FLSA and corresponding state wage and hour laws are designed to protect employees, and will be liberally construed.



Fee Fi Fo Fum: CA Supreme Court Ruling Precludes Award of Attorneys’ Fees for Prevailing Party in Meal/Rest Break Claims

Contributed by Beverly Alfon

Last week, on the heels of the Brinker decision (which requires employers to make meal breaks available to their employees, without the burden of ensuring that employees take such breaks), the California Supreme Court ruled that a prevailing party cannot collect attorneys’ fees after winning a meal or break dispute under the California Labor Code. 

In Kirby v. Immoos Fire Protection, Inc., the defendant employer was the prevailing party on a claim for alleged violations of the Labor Code section 226.7, which governs employee rest breaks.  As the prevailing party, the employer sought to recover its attorneys’ fees under section  218.5 of the Labor Code, which provides for recovery of fees by “the prevailing party” in “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.”  The trial court awarded attorneys’ fees to the employer.  The appellate court upheld the award of attorneys’ fees to the employer on the rest break claim.  However, the California Supreme Court reversed.

The court considered two questions: (i) whether meal/rest break claims fall within section 1194 (fee shifting provision) and, if not, (ii) whether section 218.5 authorizes an award for meal/rest break claims.  

  • The court determined that section 1194 did not apply because neither the text nor the history of section 1194 indicated that the statute is meant to refer to anything other than “ordinary minimum wage and overtime obligations” – which does not include meal/rest break claims.  It also reasoned that code section 1194 is one-way shifting provision that only provides recovery of attorneys’ fees to employees who prevail under that section. 
  • The court acknowledged that section 218.5 is a two-way fee shifting provision that allows an award of attorneys’ fees to any prevailing party.  However, it reasoned that the provision only applies to actions “brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions” – not missed meal/rest breaks. 

Although the California Supreme Court’s ruling was negative for the employer in Kirby, the up-side is that this decision eliminates the potential for an award of attorneys’ fees under the Labor Code, which is often used as an incentive for plaintiffs’ attorneys with respect to meal and rest break claims.

Refreshing Clarification from the California Supreme Court: Employers NOT On the Hook If Employees Work During Breaks

Contributed by Carly Zuba

For countless years now, California employers have struggled with interpreting and complying with vague and ambiguous meal and rest period laws in California.  For instance, what is meant by “providing” a thirty-minute meal and rest period to employees?  Are employers required to ensure that employees actually take these mandatory breaks? When must these breaks be allowed during the workday?  These seemingly simple questions have cost California employers hundreds upon hundreds of headaches … and millions upon millions of dollars in lawsuits.

However, as of yesterday afternoon, we anticipate that many of these headaches will subside, as the California Supreme Court provided some long-awaited clarification on these matters in Brinker Restaurant Corp. v. Superior Court of San Diego.  California employers have been holding their breaths in anticipation of this ruling for three and a half years – the case has been pending before the state’s high court since 2008.  And all the way from the state of Illinois, we are hearing California employers breathing sighs of relief.

All things considered, Brinker is a win for employers and will undoubtedly shape the growing number of class action lawsuits that employees are waging against employers accused of meal and rest break violations.  Below are the most significant rulings within the case:

  • Employers need not take on the role of “lunch police”: The court clarified that while employers are legally required to provide employees with meal and rest breaks by relieving employees of all work duties and allowing them to leave the work premises, employers are under no obligation to ensure that employees are actually taking those mandated breaks.  In short, employers cannot be sued if employees choose to perform work during their breaks.
  • Meal Period Timing: The first meal period must be provided within the first five hours of an employee’s shift.  If an employee is entitled to a second meal period, it must be provided within the first ten hours of an employee’s shift.  Beyond this, there are no additional timing requirements under the law.
  • No Required Order: Rest breaks and meal periods need not be given in any particular order.
  • Rest Period Clarification:  Employees are entitled to ten minutes of rest for shifts from three and a half hours to six hours in length, and to another ten minutes of rest for shifts from six to ten hours in length.
  • Suitability of Claims for Class Treatment: Meal and rest periods claims are suitable for class action where the employer has a uniform policy or practice which conflicts with meal and rest period requirements under the law.

Amid this mainly positive news, we close with a cautionary note for you California employers: if you know that employees are working during a mandated meal and rest break, you must immediately tell them to take their break, unless you want to pay them for that time.  This is because the court stated that if an employer “knew or reasonably should have known” that an employee was working during their break, the employer will be liable for payment of that employee’s wage for time worked.  So while you don’t have to police your employees’ breaks, you can’t simply turn a blind eye to an obvious violation.