“I am angry and I don’t know what to do with my anger!”  This is a line from the movie, The Big Chill, one of my favorites.  It also describes how I feel when I see yet another class action lawsuit in a health care facility based on a theory that workers worked during their meal breaks and were not paid. The case is entitled Marcy v. Select Medical Corporation, and was filed in federal court in the Southern District of Ohio.

The suit alleges that the facility did not pay workers for their lunch time because they often worked through lunch.  The plaintiffs allege that “during their employment with defendants, named plaintiff and other similarly situated direct care employees were not fully and properly paid for all overtime wages because defendants required a 30-minute meal break to be deducted from their compensable hours worked, even when named plaintiff and other similarly situated direct care employees were unable to take a full, uninterrupted 30-minute meal break.”  Thus, an automatic lunch deduction policy is again being attacked as causing employees to lose wages.

The workers alleged that were often precluded from taking their lunches because of the extra work they had to perform due to understaffing.  The Complaint states that “consequently, a daily 30-minute meal break was deducted from hourly direct care employees’ hours worked regardless of whether named plaintiff and other similarly situated direct care employees received a full, uninterrupted 30-minute bona fide meal break.”   

The workers allege unpaid overtime and they claim that the employer knew overtime was not being paid.  They propose a far reaching class, which would consist of  “all current and former hourly, non-exempt direct care employees of defendant who had a meal break deduction applied to their hours worked in any workweek where they were paid for at least forty (40) hours of work.”  They also have included claims under the Ohio Wage Act.

The Takeaway

Naturally, if an employee works through lunch or does not get a full lunch period due to patient needs and care responsibilities, that worker should get paid.  These automatic deduction cases are (at least on the surface) tricky for the employer because it is impossible for an employer to “prove” that every took a lunch every day.  The answer, however, as I have repeatedly urged, is a fail-safe policy, a reporting mechanism, where employees are trained to report their missed lunch and the reason for it, allowing management to decide as to whether the lunch was properly missed and compensation need be paid for that time.

It’s a simple fix. Really…