With the fast pace of a quick-service restaurant, some operators have decided to implement an automated deduction into their timekeeping policies to keep track of their workers’ meal breaks more easily. Facilitated through the electronic timekeeping system, operators automatically deduct 30 minutes (or the statutory requirement for your jurisdiction) each shift an employee works that would necessitate a meal break. The idea is that this is a convenient “set-it-and-forget-it” way for operators to account for employee meal breaks and to avoid repeated timecard error adjustments when employees forget to clock out for lunch, etc. This practice sounds like a great idea, but as with anything related to wage laws, it is not so simple.
In recent years, employers have faced an uptick of “off the clock” Fair Labor Standards Act (FLSA) wage and hour collective and class lawsuits where employees have not taken a meal break and such was deducted from their paychecks.
What Does the Law Require?
Under federal law, brief 10- or 20-minute breaks are normally compensable and cannot be considered unpaid meal breaks. To be excluded from compensable work time, a meal break must normally last at least 30 minutes and be uninterrupted. If employees are unable to leave their stations or are interrupted, the meal period will probably be considered compensable time.
It should be noted that the law in your state or locality may vary, and it is important to check the laws in the jurisdiction in which you operate.
If Your Business Proceeds with Auto Meal Break Deductions, Here Are Some Safeguards To Mitigate Your Risks:
1. Consult with Your Friendly Wage & Hour Attorney Before Implementing The Practice:
Reach out to your wage and hour attorney to have them prepare or review your written meal break policy. The policy should outline compliance with the relevant law and how to report timecard errors. Employers should have employees acknowledge receipt of this policy in writing. In some jurisdictions, having an “exception log,” or some other means for employees to report in writing days in which they do not take meal breaks, will help bolster your defenses to any off-the-clock claims.
2. Conduct Regular Training For Employees.
Schedule regular training sessions for your employees and management to review the policy and have them acknowledge that training in writing.
3. Implement Steps To Ensure Hourly, Non-Exempt Workers Get Their Breaks – Especially Minors.
From a simple checklist to a sophisticated timekeeping system, be sure to develop a system by which supervisors and managers can ensure that hourly, non-exempt workers are actually taking the meal breaks that the restaurant is auto-deducting. This could be in the form of a checklist at the end of a shift, to an attestation in the timekeeping system for workers to acknowledge that they in fact took a meal break that shift.
4. Make Sure Meal Breaks Are Uninterrupted.
Along with your timekeeping policy, you should also seek to remove workers from work areas during their unpaid meal break so they are able to enjoy an uninterrupted meal break (i.e., break rooms, etc.). Preclude workers on an unpaid meal break from performing any job duties. If you find out that a worker is doing so, adjust their pay, and proceed with discipline for violating the Company’s policies.
5. Implement A Policy For Adjusting Time Records.
When there is a mistake, and there will be, develop and implement a policy and practice for handling timecard adjustments and do so consistently among the entire employee population. Also consider regularly auditing your pay records to ensure compliance, and promptly adjust any errors that are discovered.
We know all too well that day-to-day operations in the QSR industry move quickly and it can be challenging for an employee to take an uninterrupted, bona fide meal break. As a result, these “off the clock” cases alleging missed meal periods are becoming increasingly common. QSR operators who are considering setting up automated deductions should consult with their trusted legal counsel before doing so.
Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.
