Under the Fair Labor Standards Act or FLSA, as well as various state wage laws, an employer must pay for time worked, even if it is done during your lunch break. Just because you eat does not mean that you are taking a lunch break. The real question is whether you are doing work for your employer during that time. A recent spate of inquiries has brought this question to the fore.
Are You Doing Work?
A doorman takes lunch in a break room, but keeps his eye on a monitor for a closed circuit camera that shows him the front door so that he can run out if someone comes to the door. An administrative assistant sits at lunch with her smart phone answering work email. A mechanic working eight and a half hours is paid for an eight hour shift and told to take lunch whenever he likes, but usually works through, nibbling on a sandwich as he works.
The key question is whether work is being done for the employer during that time, not whether the employee is eating. The doorman is watching the monitor and will run to the door if necessary. Keeping an eye on the monitor is work. The administrative assistant may be sitting by herself eating her lunch, but if she is reading and answering emails for her employer, she is working. And of course, the mechanic is not leaving his post for lunch at all.
Does Your Employer Know?
Employers are now defending these cases by claiming they had no idea. Now most employees working through lunch are going to be shocked to hear that protest of ignorance. But though the boss may be constantly on top of them to increase efficiency or just itching to catch someone being tardy, when it comes to overtime, you can bet that the same people will suddenly have no idea what the employee does during the day. So while all three situations are similar in that the employee is working during lunch, how the employee proves the employer knew it can make them very different.
Does Your Employer Require The Work During Lunch?
In the case of the doorman the employer obviously expects him to watch the door. The fact that the employer requires the work during lunch would ordinarily meet this burden
Did You Work With Your Supervisor During Your Lunch Break?
In the case of the administrative assistant, her boss will claim that he had no knowledge of what she was doing when she left the office. Did she copy him on the emails such that he saw them? Did she discuss the contents of the emails with him thereby telling him that she had been doing work during lunch?
Did You Complain About Doing Working During Your Lunch Break?
In the case of the mechanic, absent the boss actually seeing him working or his tracking the time he did particular work, he is going to have an even more difficult task to show the employer knew. The best proof is always a written complaint or a discussion the employee had with the boss about the fact that he is working through lunch.
How Much Is This Work Costing You?
If you are working through lunch, you have a right to be paid for it. And it will add up. Consider someone who makes $10 an hour and works through lunch five days a week for three years. That is 2.5 hours a week times $10 times 150 weeks for $3750. And under the FLSA, that amount is often doubled for a total of $7500.
It is also not uncommon for people who work through lunch to be at work early or staying late. Even if that is a mere 15 minutes on either end of the work day, that $7500 just became $15,000. If you are working through lunch and not getting paid for it, you need to speak to an employment lawyer.
There are lots of things that pressure employees to work through lunch. Sometimes the lunch period is too short to really go anywhere. Sometimes there is nowhere to go. Sometimes the amount of work that is expected cannot be completed in the time allotted if the employee takes a lunch break.
If you believe you may be entitled to overtime contact the employment attorneys at Maduff & Maduff today to discuss your situation.