Many employers use an automatic time deduction for employee meal breaks. Most systems deduct either 30 minutes or an hour for a meal break, and the employee is responsible for notifying the employer if the meal break was not taken. This timekeeping system has the benefit of not requiring employees to clock in and out during their breaks—only at the beginning and end of each shift.
These automatic deductions have led to many lawsuits, including class actions, where employees have claimed that they were not properly paid when they worked during the meal breaks. The good news for employers is that courts have found such auto-deduct policies to be enforceable. There is mounting precedent that employees must report a missed break in order to get paid for it.
Most recently, in DeSilva v. North Shore-Long Island Jewish Health System, Inc., the court decertified a collective action of 1,196 plaintiffs who had alleged that they were subject to automatic deduction of meal breaks that they did not receive. In its opinion, the court makes clear that such claims will have a difficult time proceeding as a collective action because a legal automatic meal deduction for previously scheduled breaks cannot serve as the common bond around which an FLSA collective action may be formed.
Employers may still be liable for not paying employees who work through their breaks. However, if an employer has a written policy requiring employees to notify the employer when s/he works through a break and the employee does not follow the policy, s/he may lose the right to recover the additional hours.
Randy C. Gepp