A series of wage and hour collective actions initially filed in New York and Pennsylvania have begun to swell across the country. Plaintiffs’ attorneys are targeting health care facilities over their alleged failure to comply with meal break rules. Specifically, such suits claim that employers have automatically deducted 30 to 60 minutes of time for employees’ meal periods, even if employees never took the breaks. The plaintiffs allege that by failing to provide unpaid meal periods free of interruptions from work, or by failing to fully compensate the employees for the time they were not relieved of duty, health care facilities have violated the Fair Labor Standards Act (“FLSA”) and other laws. Because employees can recover for violations that took place as many as three years before suit is filed, damages in these cases can be substantial. Employers may be liable for double the employees’ overtime rate of pay for the unpaid meal breaks that were improperly deducted. In addition, plaintiffs are entitled to recover their attorneys’ fees and costs, which often exceed the actual damages.
Not surprisingly, the Internet has become an effective tool for plaintiffs’ lawyers seeking to identify deep-pocket defendants. Some attorneys have even gone so far as to set up websites to provide information to employees about their investigations of health care employers. (See, e.g., hospitalovertime.com or overtimecases.com.) Such websites have become an easy way for a plaintiffs’ counsel to gather information about a particular health care employer’s practices, reach employees throughout the country, and publicize large settlements in wage and hour lawsuits.
Health care facilities throughout California have experienced a recent wave of wage and hour lawsuits. In 2008, at a time when registered nurses were in high demand and hospitals across the country were struggling financially, California completed implementation of landmark legislation passed almost a decade before, mandating minimum nurse-to-patient ratios. Not surprisingly, the shortage of nurses and other medical professionals has made it increasingly difficult for employers to comply with California laws requiring them to provide employees who work more than six hours with an uninterrupted 30-minute meal period. While many nurses acknowledge that the demands of their positions do not always permit an uninterrupted meal period, they uniformly object to not being compensated when they are unable to take the breaks to which they are legally entitled.
In addition to requiring payment of overtime when an employee works more than 40 hours per week, California law requires overtime pay when an employee works more than eight hours per day. Depending on the length of the shift, California employees who are denied meal periods may be entitled not only to overtime, but also to an additional hour of a “premium wage” for each missed meal period. California law permits employees to seek damages for meal period violations going back three years before suit is filed; but if the same allegations are brought under California’s Unfair Competition Law (Business & Professions Code Section 17200), the statute of limitations is four years.
Health care facilities with timekeeping systems that automatically deduct a predetermined period of time for an employee’s meal period must be certain that the employee has been completely relieved of duty for the entire meal period. Courts have recently struck down policies placing the responsibility on employees to seek adjustment of automatic deductions when they are unable to take a full meal break, finding that such an approach improperly shifts the burden from employers who are required to maintain accurate time records. An employer who fails to accurately record and certify all hours worked thus can face significant exposure for unpaid wages, penalties and attorneys’ fees.
Employers should take the following steps to identify and minimize exposure to these types of lawsuits:
- Carefully examine when and under what circumstances automatic deductions are taken for employee meal breaks. Consult your employment attorney to ensure that any automatic deductions comply with all applicable state and federal laws. Preventive audits of your existing meal period and overtime pay practices are essential to reduce or eliminate your legal risk in this area.
- Have employees verify on a weekly or a bi-weekly basis that all meal breaks reflected on their timecards were in fact taken. If a break was not taken, require the employee to note that he or she did not receive an uninterrupted break and immediately compensate the employee for the additional hour of premium pay.
- Review policies to ensure that they contain no language suggesting that employees are responsible for seeking adjustment of automatic deductions if and when they are unable to take a meal break. Remember that employers have the burden of maintaining accurate time records and paying employees for all compensable time, and paying for any meal break time when the employee is not relieved of all duty.
- Do not necessarily rely on employees to ensure their meal periods are not interrupted or not taken. The California Supreme Court is currently considering a case that involves the issue of whether employers must require that meal breaks are taken, as opposed to merely providing their employees with the opportunity to take breaks.
- Instruct managers and supervisors to promptly inform upper management if they learn that employees have received questionnaires or other correspondence from law firms regarding their unpaid meal periods.