Sixth Circuit’s Squall of FLSA Meal Break Litigation

In the last few days, the Sixth Circuit has affirmed the dismissal of two different FLSA lawsuits in two different states involving two different industries, which attempted to challenge the well-established rule that employees need not be paid for lunch breaks (of at least 20 consecutive minutes) when that time is not spent predominantly for the employer’s benefit.  So, even if you eat at your desk and your phone rings, or you eat in the employer cafeteria where your boss or a co-worker may ask you a question, or you eat in your work truck, etc. , listening for emergency calls, unless you spend time working, your lunch break is not considered compensable work time under the FLSA.   In the first case, EMTs in Louisville attempted to challenge their unpaid meal breaks when they could not prove that they had reported actual working time and where the employer had a reasonable policy of imputing a 30 minute unpaid lunch break into their shift unless the employee reported working during his or her lunch break.   Jones-Turner v. Yellow Enterprise Systems, LLC., No. 14-5407 (6^th Cir. 1-5-15).  The second case involved casino security guards who were required to remain on casino property during meal periods, monitor their radios and respond to emergencies if called, but otherwise could spend their lunch breaks as they chose.  Ruffin v. Motor City Casino, No. 14-1444 (6^th Cir. 1-7-15).

The Ruffin Court summarized the analysis for unpaid meal breaks:

As long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit, the employee is relieved of duty and is not entitled to compensation under the FLSA.

Whether time is spent predominantly for the employer’s or the employee’s benefit  depends on the totality of the circumstances.  . . . It is the employee’s burden to prove that a meal period is compensable.

 . . . Although “substantial duties need not be more than waiting for something to happen, or ‘[r]eadiness to serve[,]’”“‘[i]t is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.’”

                 . . . .

A second factor to consider is whether the employer’s business regularly interrupts the employee’s meal period. The frequency of such interruptions is important because “[t]he question is not whether [the employees’] meals were interrupted . . . but whether the degree of interruption caused them to spend their meal periods primarily for [the employer’s] benefit.”  . . . It is thus possible that an employee who does not perform a substantial duty during the meal break, but who must consistently interrupt the meal to perform one task or another, nevertheless spends that time predominantly for the employer’s benefit.

                 . . . 

A final factor we consider is the employee’s inability to leave the employer’s property during meal breaks.

 . . . [The FLSA] regulations says that “[i]t is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.” 29 C.F.R. § 785.19(b).

                . . . .

                . . . The relevant inquiry should therefore be whether the employer requires an employee to take meals on the premises as an indirect or round-about way of extracting unpaid work from the employee.

 

In Ruffin, the issue was the alleged non-payment of 1.25 hours/week FLSA overtime compensation if the meal breaks were considered to be compensable hours worked.   (The guards were also mandated to attend a 15 minute roll call meeting every day for which they had not been properly paid).   The plaintiff guards were covered by a collective bargaining agreement which provided for paid meal breaks.  If a guard’s meal break were interrupted by an emergency call (which were “essentially unheard of”), they were entitled to make up the break.  No grievances were ever filed alleging a failure to make up a break.  The plaintiffs complained about having to monitor their radios, but admitted that they were able to read, make and receive telephone calls, surf the internet and otherwise socialize during their meal breaks.    Because the meal breaks did not constitute compensable hours worked under the FLSA, the court used those 30 minutes of paid time to offset the 15 minutes of improperly uncompensated roll-call meeting time and found that the employees had only worked 38.75 hours per week for FLSA overtime purposes. “Numerous courts . . . have declined to find that an employer’s requirement that an employee carry a radio and respond if necessary converts the meal time to work time.” 

In Yellow Enterprises, the EMTs contended that they sometimes reported working through their unpaid meal break, but occasionally were not paid for that time.  However, they also admitted that they could not prove it with examples of specific instances (and bore the burden of proof).   The employer’s policy had the following wrinkles:

·        During the plaintiffs’ employment, [the employer] automatically designated a 30-minute slot during each 8.5-hour shift as an unpaid lunch break. EMTs in the field were not allotted a specific time period for lunch but were instructed to take advantage of down time  between ambulance runs to eat a meal. This 30-minute meal break could occur at any point during an employee’s 8.5-hour shift.

·        [The employer’s] policy required employees to radio the dispatch to request permission to take a lunch break. Occasional requests for lunch breaks would be denied if call volume was too high.  . . . [C]rews would not be paid for lunch if they had the opportunity to obtain a lunch but chose not to do so.

 

The plaintiffs attempted to show that the employer knew that they had worked through some unpaid meal periods because the dispatchers were required to note when employees reported off for lunch.  However, the dispatchers were not reliable in completing this task and the employer relied exclusively on employees reporting missed lunch breaks to their supervisor, Administrator or dispatch officer.   The plaintiffs admitted that they did not always notify anyone about missed meal breaks and could not show that any employees had ever been disciplined or threatened with discipline for reporting a missed meal break.          

The Court noted that “if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.”

 

Here, the plaintiffs have not produced evidence that [the employer] had either constructive or actual knowledge that they were not receiving compensation for missed meal breaks.  . . . .  Although the plaintiffs argue that their managers had actual knowledge that the plaintiffs were regularly missing meal breaks and were not submitting missed-lunch slips, the plaintiffs’ counsel conceded at oral argument that there was no evidence in the record that the managers were regularly reviewing the crew logs at any time other than when a missed-lunch slip was submitted.  . . .  Moreover, given that the plaintiffs have testified that on several occasions they did use the missed-lunch slip procedure and were reimbursed for their missed lunches, we cannot say that it was unreasonable for [the employer] not to cross-check the crew logs with the missed-lunch slips to ensure that the plaintiffs were paid for all missed lunches.

 

The EMTs also argued that their meal breaks predominantly benefitted the employer due to certain restrictions (such as monitoring their radios, remaining within a mile of their assigned territory and responding to emergency calls), but the Court rejected those restrictions as minimal (as already discussed above).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: No Employer FLSA Liability if Employee Fails to Follow Reasonable Procedures to Get Paid

Last week, the Sixth Circuit affirmed summary judgment for an employer on a claim under the Fair Labor Standards Act (FLSA) brought by a Emergency Room nurse who was not paid for missed meal breaks.  White v. Baptist Memorial Healthcare Corp., No. 11-5717 (6^th Cir. 11-6-12).  The employer utilized an automatic meal deduction system whereby 30 minutes of pay was automatically deducted from an employee’s pay unless he or she notified the employer that he or she missed her meal period.  Such systems are lawful under the FLSA.  Because the plaintiff could not prove that the employer knew or had reason to believe that she was working through unpaid meal breaks, she could not prove that the employer violated the FLSA.   It was not enough to prove that the employer had medical records showing when she was working and should have known that she was working through meal breaks. “Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.” In other words, “[w]hen the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA.”

 According to the Court’s opinion, the plaintiff signed for a copy of the employee handbook which,

stated employees working shifts of six or more hours receive an unpaid meal break that is automatically deducted from their pay checks. The handbook also provided that if an employee’s meal break was missed or interrupted because of a work related reason, the employee would be compensated for the time she worked during the meal break. [E]mployees were instructed to record all time spent performing work during meal breaks in an “exception log” whether the meal break was partially or entirely interrupted.

The plaintiff was aware of the policy and often used to follow it by recoding missed meal breaks in the exception log.  She also knew and utilized the employer’s policy “to report and correct payroll errors. If there was an error, she could report the mistake to a nurse manager who would resolve the issue” immediately.  She alleged: 

that when she reported missing a meal break, which her entire nurse unit missed as well, she was compensated for her time. She also states that there were occasions where she individually missed meal breaks but was not compensated. But on at least one occasion when she reported missing a meal break individually, she was compensated for her time. From time to time she told her supervisors that she was not getting a meal break and she also told [the] human resources department. However, she never told her supervisors or the human resources department that she was not compensated for missing her meal breaks. (emphasis added).

At some point, she stopped recording her missed meal breaks in the exception log and did not otherwise keep track of or remember her missed meal breaks.  She never notified anyone in management about the missed meal breaks or to correct any payroll errors when she was not paid for missed meal breaks.

The Court noted that automatic meal deductions are lawful under the FLSA:

An automatic meal deduction system is lawful under the FLSA. See generally Hill v. United States, 751 F.2d 810 (6th Cir. 1984) (The U.S. Postal Service’s automatic 30 minute lunch deduction system was upheld against a FLSA suit brought by a postman plaintiff where he claimed that he was continuously on duty during his mealtime and should be compensated for his mealtime.). “Time spent predominantly for the employer’s benefit during a period, although designated as a lunch period or under any other designation, nevertheless constitutes working time compensable under the provisions of the [FLSA].” F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496-97 (6th Cir. 1952) (citation and internal quotation marks omitted). “As long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit, the employee is relieved of duty and is not entitled to compensation under the FLSA.” Hill, 751 F.2d at 814. A de minimis rule applies when “the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours.” Id. at 815. Compensation is necessary “only when an employee is required to give up a substantial measure of his time.” Id.

The issue was whether the employer knew or had reason to believe that the plaintiff was working through unpaid meal breaks.  The Court decided to analyze the case the same as a claim for unpaid overtime.  As noted by the Court:

There is a dearth of case law on compensation for missed meal breaks under the FLSA as compared to the case law on unpaid overtime. But “[a] claim for non-payment of work during an established mealtime is analytically similar to an unpaid overtime claim.” Hertz v. Woodbury County, 566 F.3d 775, 783 (8th Cir. 2009) (citation omitted). Since “[t]he gravamen of [White’s] complaint is that [she] performed ‘work’ during mealtimes, [she is essentially arguing] that the work amounted to overtime because it was in addition to their already-scheduled, eight-hour shift, and the work during these mealtimes went uncompensated.”

As reflected in the Hertz case,  

The FLSA’s standard for constructive knowledge in the overtime context is whether the County ‘should have known,’ not whether it could have known.” Id. at 782 (citation omitted). It went on to say, “It would not be reasonable to require that the County weed through non-payroll CAD records to determine whether or not its employees were working beyond their scheduled hours. This is particularly true given the fact that the County has an established procedure for overtime claims that Plaintiffs regularly used.” Id. (citing Newton, 47 F.3d at 749).

Likewise, in the Newton case, “[t]he issue was not if the officer’s City supervisor “could have known that [the officer] was working overtime hours,” but “whether he should have known.” Id.”  As explained by the Ninth Circuit: “[t]he relevant knowledge is not ‘I know that the employee was working,’ but ‘I know the employee was working and not reporting his time.’” Raczkowski v. TC Const. Co., Inc., 8 F.3d 29 (table), 1993 WL 385483, at *1 (9th Cir. 1993) (citing Forrester). “And an employee cannot undermine his employer’s efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.” Id.

 At the end of the day, the plaintiff showed that she was paid when she notified the employer that she was not getting paid when she worked through meal breaks.  However, she alleged that it should still be liable when she failed to notify them about her unpaid working time even though there was no reasonable way for the employer to know that she was not being paid for missing her meal breaks.   The Court refused to find that the plaintiff’s situation was similar to other plaintiffs where the employer had prevented the employee from reporting overtime because there was no evidence here that the defendant employer had ever discouraged her from utilizing the exception log (other than a post-deposition affidavit which flatly contradicted her deposition testimony).

 

Baptist established a system to compensate its workers for time worked during meal breaks. When White utilized the system she was compensated and when she failed to use the system she was not compensated. Without evidence that Baptist prevented White from utilizing the system to report either entirely or partially missed meal breaks, White cannot recover damages from Baptist under the FLSA.

The Court also affirmed the court’s denial of the class-action status:

White bears the burden of showing that she and the opt-in plaintiffs are similarly situated. However, the district court properly dismissed her FLSA claim. Therefore, “[w]ithout a viable claim, [White] cannot represent others whom she alleged were similarly situated.” In re Family Dollar FLSA Litigation, 637 F.3d 508, 519 (4th Cir. 2011). Just as opt-in plaintiffs are not similarly situated to a lead plaintiff if their claims are dismissed, O’Brien, 575 F.3d at 586, a lead plaintiff cannot be similarly situated and represent opt-in plaintiffs without a viable claim. In re Family Dollar FLSA Litigation, 637 F.3d at 519. Since White cannot meet her burden that she is similarly situated to the opt-in plaintiffs because her FLSA claims were dismissed, decertification was proper.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.