Our July 5 post prompted a question about whether an established meal period of less than 30 minutes must be considered worktime under the federal Fair Labor Standards Act.  The answer is, "Not necessarily".

U.S. Labor Department interpretations state that bona fide meal periods during which employees are completely relieved from duty in order to eat regular meals are not FLSA worktime.  See 29 C.F.R. § 785.19(a).  This provision also says that "ordinarily" 30 minutes or more is long enough for such a period.  This has led many people (sometimes including even U.S. Wage and Hour Division officials) to insist that, if an employer maintains a meal period of less than 30 minutes, the mealtime must be considered hours worked under the FLSA.

But the Labor Department's own interpretation recognizes that a shorter timeframe can be long enough "under special conditions."  Among the special conditions the Labor Department looks for are these:

•   Any work-related interruptions of the meal period are sporadic and minimal;

•   Employees have enough time to eat a regular meal under the circumstances;

•   The period is not just a break for snacks or coffee but instead allows the employee to eat a full meal, comes at a time when meals are normally consumed, and occurs with a frequency that is customary for regular meals;

•   The employer and employees have agreed that a period of less than 30 minutes is sufficient to eat a regular meal; and

•   Applicable state or local laws do not require a longer meal period than the one established.

Section 31b23, Field Operations Handbook (U.S. Labor Department, December 15, 2000).

The Labor Department reviews these factors on a case-by-case basis, taking into account the particular context involved.  U.S. Wage and Hour Investigators are instructed to give "special scrutiny" to meal periods of less than 20 minutes.

These principles have to do with whether established mealtimes of under 30 minutes are bona fide, non-compensable ones.  Work-related interruptions of established meal periods are evaluated differently.

Finally, remember that state or local laws might require a meal period of at least 30 minutes or some other length and might impose other meal-related obligations.  The FLSA does not relieve an employer from its responsibilities under any such laws.

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An increasing number of federal Fair Labor Standards Act lawsuits and U.S. Labor Department investigations include claims based upon the employer's automatically deducting meal periods from non-exempt employees' recorded worktimes.  Typically, the employees did not clock out-and-in to reflect the mealtime they took.  Instead, the employers systematically subtracted the full, scheduled meal period from each employee's total daily hours on the assumption that the person took an entire, uninterrupted meal break each workday.  An employee who worked during a meal period could avoid the deduction by using an exception feature of the timekeeping system, but the usual allegation is that employees did so inconsistently or infrequently, if ever.

Generally speaking, the FLSA does not require that employees be compensated for duty-free meal periods.  However, to the extent that automatic time deductions deprive an employee of FLSA-required wages for work during a meal period, a violation often occurs.  For instance, this frequently happens when the "standard" deduction is made for a day when the employee takes no meal break or takes only a shortened one, or where the meal period is shot-through with work-related interruptions.

A timekeeping-by-exception approach to meal periods is not unlawful under the FLSA if it results in an accurate record of non-exempt employees' hours worked.  See, e.g., Opinion Letter of Office of Enforcement Policy FLSA2007-1NA (May 14, 2007).  However, experience suggests that this is not what occurs in the real world.  An unusual set of circumstances might permit such a claim to be defended successfully, but even then the "win" is likely to be so expensive and disruptive that it will not feel much like a victory.

A safer approach is to instruct employees clearly that:

•   They are to clock out-and-in for the time taken for a meal period;

•   They are not to work during mealtime unless it is unavoidable; but

•   They will be compensated for and must therefore accurately record any time so worked.

Of course, even if employees are told these things, in the end what matters is what actually happens.  For example, there might be situations in which work-related interruptions of a meal period should lead to considering the entire period to be compensable worktime.

Meal periods might also be regulated by the laws of other jurisdictions.  In addition to considering FLSA issues, it is also important to know whether and how those laws might affect timekeeping and pay where meals are concerned.

UPDATE 08/10/10:  As recent news reports demonstrate, this is an increasingly frequent subject of claims made in disputes with health-care institutions.

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