I have encountered a number of cases where employees do not, whether unintentionally or otherwise, work through their lunch hours (or half-hours) and then later claim they are owed wages or overtime for that work. It is crucial to understand that it is not enough to simply, merely have a policy that requires employees to take lunch. The employer must be vigilant that employees are in fact taking lunch and must ensure, to the maximum extent operationally possible, that employees sign out and sign back in when they return from lunch.
A recent US Department of Labor Opinion Letter makes this clear. The Opinion Letter repeats the age-old adage that time not requested to be worked but yet suffered or permitted to be worked is work time. Under this rubric, missed meal periods will be counted by the DOL as working time. If the employee is regularly scheduled to work 35 hours, and with missed lunch periods, claims he worked 37.5 hours (at a half-hour per day), no additional compensation will be owed if the employee is nevertheless paid the minimum wage for all hours worked. This means that salaried (non-exempt) employees who miss lunches but whose salaries still yield minimum wage payment for all hours are due no additional compensation.
As the Second Circuit Court of Appeals, in Chao v Gotham Registry, Inc. has recently stated in a similar case, “it is the duty of the management to exercise its control and see that work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough.”
The employer must exercise supervisory oversight in this area. Ensure that employees punch out for lunch and they punch back in. It will be extraordinarily difficult to prove, at a trial that may ensue several years later, whether or not someone took lunch on August 15, 2008 (or the day after, or the day after that and so on). Unless the time in question is a minute or two, or such occurrences are isolated, the employer must constantly guard against claims of time allegedlty worked, when, all things being equal, it probably was not.