You may be cheated out of overtime if you are a residential or nursing care worker: (1) when not fully paid for all time worked, (2) when meal breaks are automatically deducted from paid time even though the meal break was not taken, (3) when the meal break was a “working lunch or dinner,” (4) when the 30 minute break was interrupted by work activities and then completed.
Two Detroit area residential care facilities operated by Beaumont Health will pay $400,007 in back wages to 476 employees for violations of the FLSA. The employer automatically deducted time for meal breaks from employees’ recorded work time even when employees were unable to take those breaks. When breaks were not taken, these automatic deductions resulted in unpaid work hours and in overtime violations when employees worked more than 40 hours in a workweek.
I. THE PROBLEM.
In the health care industry, whether in a hospital, clinic, or residential care setting; patient care often makes it hard for workers to take regularly scheduled meal breaks. Sometimes the break is only delayed. Other times, the break is interrupted or missed all together.
To make sure that workers are only paid for the time actually worked, some employers automatically deduct for meal breaks when the worker does not clock in or out for the break. This can violate the Fair Labor Standards Act (“FLSA”) if the employee actually worked the time deducted as unpaid time. This automatic deduction can also violate the FLSA if the meal break is interrupted. To be “unpaid time” under the FLSA, a meal break must be uninterrupted.
II. MEAL BREAKS.
Legitimate meal periods (typically 30 minutes or more) are not work time; and an employer does not have to pay for them. However, the employees must be completely relieved from duty for the time to be unpaid. When choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break. For More See: Fact Sheet #53 – The Health Care Industry and Hours Worked.
Example 1: “The Working Meal Break”
A skilled nursing facility automatically deducts one-half hour for meal breaks each shift. Upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. Does this practice comply with the FLSA? Yes, but the employer is still responsible for confirming that the employees actually take the 30-minute meal break without interruption.
The “working meal break” is paid time if the worker is not completely relieved of duties during the break. For example, if the worker completes paperwork or updates charts during the meal break; this is paid time and not an unpaid meal break. Similarly, suppose the worker is required to eat at the nursing station in order to monitor any patient call button requests or respond to the patients’ monitor alarms. This “working lunch or dinner” is paid time and not an unpaid meal break.
Example 2: “Interrupted Meal Break”
An hourly paid registered nurse works at a nursing home which allows a 30-minute meal break. The nurse is interrupted at the 15 minute mark of the break and responds to a patient’s request for assistance. After checking on the patient, the nurse returns and completes his/her remaining 15 minutes of the meal break.
Residents frequently interrupt his/her meal break with requests for assistance. Must the worker be paid for these frequently interrupted meal breaks? Yes, if employees’ meals are interrupted to the extent that the meal period is predominately for the benefit of the employer to provide patient coverage, the employees should be paid for the full 30-minutes.
III. OTHER BREAKS.
Rest periods of short duration, generally running from 5 minutes to about 20 minutes, are common in the health care industry.
They promote the efficiency of the employee and are customarily paid for as work time. Whether a break is paid time does not depend on whether the employee drinks coffee, smokes, goes to the rest room, etc. See Regulations 29 CFR 785.18.
Example 3: Many third shift nursing home employees who smoke prefer to take three ten-minute, unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute the smoke breaks for their meal break? No, the employee must be paid for the smoke breaks.
IV. CONSULT AN ATTORNEY.
You may be cheated out of overtime if you are a rehabilitation or nursing care worker: (1) when not fully paid for all time worked, (2) when meal breaks are automatically deducted from paid time even though the meal break was not taken, (3) when the meal break was a “working lunch or dinner,” (4) when the 30 minute break was interrupted by work activities and then completed.
Employees who are owed overtime can collect (1) back wages for all “Hours Worked” and any unpaid overtime, plus (2) liquidated damages in an additional amount of the same back wages and overtime, and (3) attorney’s fees and costs.
The Ken S. Nugent, P.C. Overtime and Unpaid Wages team of attorneys can help you determine whether you are entitled to overtime pay. Our team covers the entire state of Georgia. We have eight Georgia offices ready to protect workers in not only large cities but also small towns and rural areas who are being cheated on their earned overtime. We have an office with overtime attorneys near you: Albany, Atlanta, Augusta, Columbus, Duluth, Macon, Savannah, and Valdosta. To reach one of our overtime team of attorneys, please contact us at 1-888-579-1790 or leave us your information and questions at our Overtime and Lost Wages website practice page.