The Fair Labor Standards Act allows employers to provide unpaid meal breaks to non-exempt employees if those breaks are of a sufficient length and if employees are relieved of their duties during such breaks. Employers are not liable if the employee works through the breaks in situations where the employer did not know or should have known of the additional work. Last week, the Eighth Circuit Court of Appeals rejected an employer’s defense that it did not know employees were working through meal breaks because those employees failed to use an exception policy put into place to provide pay when breaks were missed.

In Micone v. Levering Regional Healthcare Center LLC, the plaintiffs were health care aides who alleged that they routinely worked through their 30-minute meal breaks even though those breaks were automatically deducted from their pay. The employer contended that it was not liable for the mealtimes worked because the employees failed to use a process it had established for employees to request an exception from the automatic deduction. The district court dismissed the complaint on the basis that the employer was not aware of the additional work.

On appeal in a 2-1 decision, the Second Circuit reversed this dismissal, concluding that the employer failed to effectively communicate the exceptions policy or train employees on its use. As evidence of this failure, the court noted that during the two-year audit period, no employees had used the exception policy. Multiple employees testified that they had never received training and had no knowledge that the exception policy existed. The dissenting judge said that the employer had adopted an effective policy, and that its communication was not relevant to the legal questions involved.

The Second Circuit also rejected the employer’s claim that the Department of Labor failed to reasonably determine the amount of unpaid time worked based on a lack of documentation. The court noted that juries can make a reasonable inference as to the amount of unpaid time worked without the need for a precise determination.

Employers that use an automatic deduction for meal and rest breaks with an exception system should clearly communicate the policy in writing, maintain records of employee training on the policy, and conduct periodic audits to assure that the policy is used in appropriate situations.

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