September 30, 2021

Don’t Dock If You Don’t Clock

An employer has a policy of automatically deducting one hour for a meal period. The employer also has a policy that lets employees know, “There is a mandatory un-paid 1 hour meal period on each shift.” The policy instructs employees to not perform any work during the meal period and to use the time as they wish. The company employs at least 19 security guards who had little to do on empty flights returning from their destination.

Those employees sued, alleging they should have been paid for the one hour meal period, as they were engaged to wait. The employer said their time was idle waiting time, during which they likely had more than one hour to eat.

Who has the burden of proof? The court explained that initially, the employee must show what hours were worked and not properly compensated. Then, the burden shifts to the employer to show any portion of the claimed work time was not compensable, such as for a meal period.

So, What’s the Problem? The U.S. Department of Labor guidance teaches us that an employer’s auto-deduction for a meal period, ““does not violate the FLSA so long as the employer accurately records actual hours worked, including any work performed during the lunch period.” So, all the employer had to show was the employees actually took a one-hour meal period. But as the court described it, the employer “never does so, to the contrary, it merely—and repeatedly—hammers the point” that the employees had enough idle time to take the meal period.


Document, document, document. The court reminds us that employers “must point to something other than the fact that the [employees] were idle on the flights.” You need evidence that the meal period was actually taken and the employee was completely relieved of performing any work.

Record Unpaid Meal Periods. If you do not have non-exempt employees “clock” out and back in or otherwise record their time spent in unpaid meal periods, consider doing so. Those records can save the day.

FLSA’s Waiting Time. If you control or limit what an employee can do during idle time, such as waiting for equipment to be repaired or work to begin, then you have engaged the employee to wait and the waiting time must be paid.  But, if the employee is fairly free to engage in personal activities away from the worksite, such as while on-call, the employee is waiting to be engaged and that is not considered time worked. Want learn more FLSA basics? Check out FiveL Company’s September webcast, “Wage & Hour Do’s and Don’ts.” $25 pp

Some good news. The court found the employer acted in good faith. That meant it would be liable for two years’ back wages, not three, and would not be subject to punitive and liquidated damages. Why? “[C]ompany executives sought outside counsel’s advice regarding whether the meal-period policy complied with the FLSA.” ‘Nuff said.