Many employers employ a practice of automatically deducting 30 or more minutes of their employees’ pay for meal/lunch breaks. Such a practice is lawful so long as the employee is paid for any work performed during the meal break period.

The federal Fair Labor Standards Act (FLSA) does not require meal or break periods. Most states, however, including Tennessee, do mandate meal breaks. Specifically, Tenn. Code Ann. 50-2-103(h) provides that:

Each employee must have a thirty (30) minute unpaid rest break or meal period if scheduled to work six (6) hours consecutively, except in workplace environments that by their nature of business provide for ample opportunity to rest or take an appropriate break. Such break shall not be scheduled during or before the first hour of scheduled work activity.

Importantly, however, if a meal break is provided by the employer, the FLSA contains a regulation that expressly sets forth when a meal break is compensable. The regulation is found at 29 C.F.R. 785.19 and provides:

Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.

Recently, the Middle District of Tennessee conditionally certified a FLSA collective action involving an allegedly unlawful scheme to deprive employees of their pay for work performed during their meal breaks. See Kimbell v. Dynamic Strategy, Inc., 2009 WL 1651431 (M.D.Tenn. June 12, 2009)(citing 29 C.F.R. 785.13). In this case, the employer automatically deducted time for meal breaks. While the employer purported to have a process by which its employees could submit a request for pay for work performed during a meal break, there was evidence that the company discouraged employees from seeking this pay. This case illustrates the legal problems that can arise if employers do not make sure that employees receive pay for work for performed during meal breaks.

As the Sixth Circuit has stated, it is the responsibility of management to see that work is not performed if it does not want it to be performed. In other words, management cannot sit back and accept the benefits of work without compensating employees. U.S. Dept. of Labor v. Cole Enterprises, Inc., 62 F.3d 775, 779-80 (6th Cir. 1995)(citing 29 C.F.R. 785.13).

One basis for taking leave from work under the Family and Medical Leave Act (FMLA) is where an employee suffers from a “serious health condition” that renders the employee unable to perform the functions of his position. 29 U.S.C. § 2612(a)(1)(D).

The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves:

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

The FMLA’s implementing regulations, which further explain and define the terms “serious health condition”, “inpatient care”, and “continuing treatment”, were amended in early 2009. See 29 C.F.R. § 825.113, 825.114, and 825.115. Click here..

Therefore, attorneys, human resource professionals, and affected employees, need to make sure that they consult the amended regulations should a question regarding the subject of a “serious health condition” arise.

A disappointing decision was released by the 6th Circuit Court of Appeals last week in a Title VII retaliation case. See Thompson v. North American Stainless, LP, No. 07-5040, ___ F.3d ___ (6th Cir. June 5, 2009). 09a0202p-06.pdf

In Thompson, a female employee filed a charge of sex discrimination with the EEOC. Three weeks later the employer fired the female employee’s fiance. The female employee’s fiance alleged he was retaliated against as a result of his fiance’s protected activity.

The 6th Circuit held that even if the employer purposefully retaliated against the employee because of his fiance’s protected activity he could still not state a claim for retaliation under Title VII. In a 9-6 decision by the full 6th Circuit, the 9 judge majority held that Title VII’s anti-retaliation provision only protects those persons who have who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.

Thompson is a very unfortunate a decision, which conflicts with other decisions around the country. I understand that the plaintiff is going to file a petition for a writ of certiorari with the U.S. Supreme Court requesting that it hear the case. While it is rare for the U.S. Supreme Court to agree to hear a case, I think the Thompson decision just might catch the Court’s attention. The practical impact of the 6th Circuit’s decision is to sanction retaliation. This can’t seriously be debated. And my personal opinion is that that Congress didn’t intend to permit such retaliation.