automatic clock out for lunch- legal or not???

Renie · September 2002

Is it legal to automatically deduct an hour for lunch even though employee's do not always take the full hour? It is my understanding that an hour worked is an hour paid no matter what, but our accounting department seems to think otherwise. Any ideas?

JKlink · September 2002

My idea would be that they read the FLSA. No they can not do that to an employee. If the employee (non-exempt) works, they get paid for it. NOw it could go into a "discipline" for working when they are not supposed to be -- leads to overtime.

System · September 2002

I agree, JKlink. It seems like you're basically talking about unauthorized overtime. You have to pay employees whenever you "suffer or permit" them to work. I think the only way out of it is to have a rule requiring employees to take a full hour and then consistently disciplining employees who break the rule. Then, if an employee complains to the DOL, your accountants might be able to win, although you'd have to pay your lawyer $200 per hour to do it.

If you subscribe to the Employment Law Letter in your state, go to the subscriber's area of this website. Then look at the Special Report called "Defusing the Overtime Bomb: How to Comply with the FLSA." It's my favorite Special Report (what a nerdy thing to say!) The section on unauthorized overtime begins on p. 49.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Rockie · September 2002

This is a common practice in the hospital environment. Usually the deduction is 30 minutes because it would be rare for an employee to be able to eat lunch in less than 30 minutes. If an employee works through lunch or (on rare occasions) takes less than 30 minutes, their supervisor must make an exception on their time record for them to get paid for the time they worked. Then, the employee has to explain why they didn't take required lunch break.

We have gone back and forth, back and forth on this matter in our medical facility because we have so much time clock abuse by employees. They will clock out, go pick up their lunch down the street,and clock back in. Then, they will go in the breakroom and eat their lunch "on the clock". Presently, we don't automatically deduct for lunches, but because of the "milking" of the clock by employees, we are considering going back to this system.

As I explain to employees in orientation, if you work, we are required to pay you, but if you work after your supervisor advises you not to, we can fire you.

E Wart · September 2002

You HAVE to pay an non exempt employee for any time worked, whether or not you approve it or even knew about it. You CANNOT just arbitrarily deduct time (money) from an employees check. You need to have in your policy/handbook (that the employee signs) that they are required to take meal breaks and that any overtime worked must be approved by supervision before worked. This way you can then dicipline employees who don't follow company policy, but you still have to pay them for it. You also must be consistent with applying the rule and you shouldn't then ask someone to work through their meal break if it is required.
E Wart GA

Melanie · September 2002

I worked for a company about two years ago, and we got audited by the DOL, Wage and Hour Division, because some employees had anonymously sent in letters to the DOL stating they had gotten an automatic 1/2 hr deducted and they said they hadn't taken a 1/2 hr lunch. When we got audited, the records showed that we owed employees back, because we couldn't prove that we got their approval for the 1/2 hr deduction. Just remember, you can continue to practice as you are, but if an employee complains you're in for an expensive audit.

Pork · September 2002

Renie, Good morning may we all have a "Blessed Day"! The above respones are right on; let me add that your friendly pamplet obtained from your regional DOL entitled Regulations Part 785, HOURS WORKED UNDER THE FAIR LABOR STANDARDS ACT OF 1983, AS AMENDED and Cubpart C "Applications of Principles" gets you Section 785.11, to 785.19 and within are the exact words of the law. Now, we have put it out in our company that it is the law that Meals breaks are rest breaks and we the organization are required to provide a meal/rest break within any 6 hour period of time. Failing to take meal/rest breaks is a safety issue and the management/leaders are required to enforce the federal law. We can not force anyone to eat but we can force them to take a meal break. If we the company allow the receptionist to answer the phone or the nurse to take care of an employee during this minimum 30 minutes, then the employee nurse or receptionist must be paid for the 30 minute rest period or begin a new 30 minute rest period. It is a major problem if the company as a norm turns away from the rule and just generally takes the 30 minute break. First of all there is only one person keeping record of these 30 minute periods of meal/rest breaks; it is the concerned employee keeping record on her little notebook pad. It will be after she/he is terminated that you will get an audit of this wrong doing. He/she will cover several years and only she will have a witness that she/he was never able to really take the required meal/rest break. she will also use the time cards and your pay vouchers to prove that your company did not pay but you permitted him/her to work. one phone call on the behalf of the company or one patient call during the required 30 minute break period is all that it takes to destroy the solid 30 minute rest/meal period. The angry x-employee will have all of the facts, including your own documents to prove her facts written down as the most reliable facts of her claim. The company will pay. Good luck, Pork

Renie · September 2002

Lunches have become such a pain to enforce. I appreciate all of the comments and ideas, THANK YOU! From what everyone has said it doesn't sound very safe to automatically deduct time from an employee for lunch time or not. I think I will suggest to accounting that they need to come up with another idea for enforcing lunch hours!

automatic clock out for lunch- legal or not???

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