July 27, 2023
Sadly, claims for meal and rest period violations (which yield large potential liability for employers) are low hanging fruit for plaintiff’s attorneys. Why? Lots of reasons. For example, busy employers often neglect to closely track whether employees are taking their meal periods a few minutes late, or coming back a few minutes early. Another example: because rest periods typically aren’t tracked on time sheets, employees are in a position to suggest that they regularly skipped or were prevented from taking the breaks. Your risk of making the most common mistakes (many of which can lead to this costly litigation) can be greatly reduced if you take some simple steps.
1. Stop rounding employee time punches. Are you aware that rounding meal break time punches is unlawful? If you can track exact time worked, we recommend you do so!
2. Pay attention to time records for meal breaks, and correctly pay missed meal premiums when due. Employee pay records will reflect if an employee skipped a meal, took a late meal or took too short a meal period. We recommend you regularly audit missed, late, short, or interrupted meal breaks. When you see that on a time record (or if you observe it with respect to meals or rest periods), you will want to ask the employee “why?” and pay premiums in the event any employee is prevented by their workload or their manager from taking a break (vs. electing to do so for their own convenience).
3. When you pay a meal or rest period premium, do so correctly! When employees receive additional non-discretionary compensation (subject to some specific exclusions), that additional compensation must be included when you calculate the employees’ regular rate of pay for purposes of certain pay, such meal and rest break premiums. For example, if you are not considering non-discretionary bonuses and commissions, shift differentials, hazard pay, hero pay, and other incentives or compensation in doing the math on regular rate of pay, you have exposure for expensive litigation.
4. Require that each pay period, employee’s attest to the accuracy of their time records and confirm they were afforded their meal and rest periods. You literally cannot often enough remind employees of their entitlements. We recommend that each pay period your non-exempt employees confirm.
- They understand their meal and rest period (and other) entitlements
- That they were afforded those entitlements
- If they skipped or took a late, short or interrupted meal or rest period, why?
This simple documentation can be a powerful defense tool in a claim for meal or rest period violations.
5. Train managers and non-exempt employees on wage and hour policies and procedures. Your managers are your best protection from expensive litigation. They can’t enforce the rules if they don’t know them well! And employees cannot suggest they do not understand the rules if you regularly are reinforcing them. Make training a regular practice. And provide avenues and resources to answer employees’ questions throughout their employment.
Let us know how we can help you create the policies, practices and documentation that will reduce your risk of liability in these all too regular claims.
