Payroll News

The Department of Labor (DOL) has recently issued an opinion letter on whether an employer’s break and meal policy was in compliance with the Fair Labor Standards Act (FLSA) [Wage & Hour Opinion Letter FLSA2008-7NA].

The company has written policies regarding break and meal periods which provide:

The company offers employees a 15-minute break during each shift of six or more hours. There are normally no guaranteed break periods when the employee is working overtime. Break periods begin as soon as employees remove themselves from the scheduled daily work routine.

All employees working six or more hours in a shift must receive a 30-minute, uninterrupted, and unpaid meal period. The meal period requirements cannot be waived by the employee nor substituted for any other time.

There may be instances when, because of staffing or workloads, a meal period may not be available to all staff members. Non-exempt employees should notify their manager if they do not take a meal period and note the discussion on their timecard so they will be compensated for their time.

The company  asked the DOL six questions:

Question 1: If an employee fails to take a meal break and does not notify the manager that he did so in direct violation of the policy, is additional straight time compensation due if less than 40 hours were worked (assuming minimum wage still was received)?

Answer: “Work not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11. Thus, the employer must compensate the employee for all hours worked including the time worked during the missed meal period. In a workweek in which no overtime hours have been worked, however, an employee subject to section 6 of the FLSA is considered to be paid in compliance with the FLSA if the employee’s total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage. Thus, in the situation described above, if the employee receives at least the minimum wage for all the hours worked (including the time worked because of a missed meal period), no additional compensation is due.

Question 2: Is the ‘missed meal’ period considered work time for purposes of determining overtime compensation?

Answer: The time worked because of a missed meal period is hours worked for purposes of determining overtime compensation. (see Wage & Hour Opinion Letter FLSA2007-1NA, 5/14/07).

Question 3: Assume that an employee is regularly scheduled to work 35 hours per week. If he or she begins work early or works after the regular finishing time, is additional straight time compensation due (assuming that, even with these unrecorded extra hours, the worker received the minimum wage for all hours of work and also assume that a published policy prohibits all forms of off-the-clock work)?

Answer: See A1. Also, as indicated in A2 above, if the additional hours worked result in the employee working in excess of 40 hours in a workweek, the regular rate of pay must be paid for all hours worked and the one-half time overtime premium for all hours over 40. The overtime premium “cannot be said to have been paid to an employee unless all the straight time compensation due him for the nonovertime hours under his contract (express or implied) or under any applicable statute has been paid.” 29 C.F.R.§ 778.315.

Question 4: Would the Department of Labor change its response to Question 3 if the employee was advised in writing not to work any unrecorded work hours at any time and was subject to disciplinary action?

Answer: We do not have enough information to determine whether the response to Q3 would change even if the employee was advised in writing not to work unrecorded hours and was subject to disciplinary action. Such determinations are fact-specific and must be made on a case-by-case basis.

Question 5: If an employee receives premium pay that is not otherwise due (e.g., time and one-half for working over eight hours in a day), is that an offset against any straight-time pay or overtime pay that may be due in that workweek?

DOL answer: Under sections 7(e)(5), (6), and (7) of the FLSA, certain premium payments made by employers for work in excess of or outside of specified daily or weekly standard work periods or on certain special days are regarded as overtime premiums. In such situations, the extra compensation provided by the premium rates need not be included in the employee’s regular rate of pay for the purpose of computing overtime compensation. Moreover, under section 7(h) of the FLSA that extra compensation described in sections 7(e)(5), (6), or (7) may be credited toward the overtime compensation payments. See 29 C.F.R. § 778.201.

Question 6: Does the Department of Labor have a guideline for time that is de minimis or subject to rounding off? The employer utilizes electronic time clocks that record ‘punched time’ in one-minute increments.

Answer: As noted in 29 C.F.R. § 785.48(b), for enforcement purposes, the payment of wages based on recording and computing time to the nearest five minutes, or the nearest one tenth or quarter of an hour, will be accepted provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.

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