Best Wage and Hour Lawyer Answers: Does the Fair Labor Standards Act require employers to give a meal break to its employees? How long do the meal breaks have to be? If I work through my meal break does my employer have to pay me for that time?
Our wage and hour attorneys recently encountered a question from an employee who was concerned that she was not being paid for time worked during lunch breaks at her current employer. Specifically, the employe was concerned that because of her work load she often had to work through her lunch break, yet she would not be compensated for the time because her employer did not want to pay her more than 8 hours for day, or over 40 hours for the week. The employee’s question was simple: Did her employer have to pay her if she worked through her lunch break? Our overtime law lawyers have tangentially addressed this wage theft issue before. (See Can I Be Fired For Refusing To Clock Out Before I’m Done Working? I Need A Lawyer!; When Does My Job Have To Start Paying Me? Best Wage Lawyer Reply! and Does My Employer Have To Give Me A Lunch Break? Best Lawyer Reply!).
The Wage and Hour Division of the Department of Labor (“DOL“) has provided some guidance on this issue. In its Wage Opinion Letter, the DOL examined the “meal break” question using the following an example like this: Say the employer’s written policy gives each employee a 15-minute break during each shift of six or more hours, but no guaranteed break periods during overtime shifts. The employer’s policy, in this example, defines the break periods as starting the moment the employee stopped working on the scheduled daily work routine. Additionally, every employee that works at least six hours during a shift gets a 30-minute uninterrupted lunch or other meal break depending on the shift, but that these meal breaks are not paid by the employer. The employer expressly has a written policy that prevents the employee from waiving or substituting these breaks for any other time. If an employee cannot take a meal break, the employee must report it to a supervisor, manager or other boss.
Let’s answer some questions on this point:
Wage Question: If the employee who is already working 40 hours per week does not take a lunch break, but neglects to tell a manager or supervisor in violation of the company policy, is the employee entitled to be paid for that time?
Wage Attorney Answer: Wage and hour laws found at 29 C.F.R. § 785.11 provides: “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.”
Wage Question: So, if an employee works through all or part of a lunch or meal break, should that time be used to calculate overtime?
Wage Attorney Answer: Yes. An employee’s time worked because of a missed lunch or meal time should be considered “hours worked” to calculate overtime pay. See Wage and Hour Opinion Letter FLSA2007-1NA (May 14, 2007). Again, employers are required to pay employees for all hours worked at the agreed rate for the first 40 hours and one and half that rate for all overtime hours beyond 40 hours during a workweek.
Wage Question: Okay, but what if the employee is a part-time employee that only works 30 hours per week and skips two hours of break time during the week?
Wage Attorney Answer: This is where it gets a little tricky. When there are no overtime hours worked during the designated workweek, it will depend on if the employee is a minimum wage worker or close to minimum wage. Under the Fair Labor Standards Act (“FLSA“), an employee will be deemed to be paid properly if the employee’s full wages for the workweek divided by the hours worked are at least minimum wage. As such, if an employee is making twice minimum wage and skips one lunch break, there would not be a violation. However, an employee that works for minimum wage or close to minimum wage and works through a lunch or two will likely have a claim for the employer’s failure to properly pay minimum wage because the total pay divided by the total hours would drop the pay per hour rate below minimum wage.
What does all of this mean? In short, it means different things depending on if you are claiming unpaid minimum wage versus unpaid overtime compensation. Under the former scenario, even if you are not paid for unused lunch break, if the employer has still paid you at least minimum wage when adding those additional hours to your total hour output for the week, then you legally have not been denied minimum wage under the FLSA. Under the latter scenario, however, if you worked through five lunch breaks throughout your week, each an hour long, and still work 40 hours on top of that, those five hours would have to be added to your hours output for the week (45 hours) which would presumably entitled you to overtime compensation assuming you meet the other requirements under the FLSA.
Do you still have a question about your unpaid lunch breaks or other wage and hour issues at your job? If you believe that your employer is not paying you all of your wages, paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.