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Should we sue my husband's employer?

Oklahoma City, OK |

My husband's employer recently cut his hours from full time to part time. For the past few paychecks we have noticed that not all time put in has been accounted for, resulting in monies missing from his check. He confronted his boss and requested the time be fixed and he be properly compensated. His employer admitted to taking time from his checks because my husband takes 2 fifteen minute smoke breaks, which I thought was allowed by law. and he should "suck it up". Since speaking with him employer has yielded no results, would we have a case should we choose to sue? Should we file a complaint with the EOC? Thank you for your time.

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Attorney answers 3


I am not familiar with any law that requires an employer to pay for the time that you quit working and go smoke. If you do find that an employer is required to pay for your time away from work, you could file a claim with the Oklahoma Department of Labor. I am providing a link to the claim form below.

Terrell Monks

Terrell Monks


"The Fair Labor Standards Act applies to "employees who are engaged in interstate commerce or in the production of goods for commerce, or who are employed by an enterprise engaged in commerce or in the production of goods for commerce",[7] unless the employer can claim an exemption from coverage. Generally, an employer who does at least $500,000 of business or gross sales in a year satisfies the commerce requirements of the FLSA, and therefore that employer's workers will be subject to the FLSA's protections if none of the other exemptions apply. Several exemptions exist that relieve an employer from having to meet the statutory minimum wage, overtime, and record-keeping requirements. "


Brief rest periods of less than twenty minutes are generally paid time under the Fair Labor Standards Act. The employer should not be deducting pay for taking breaks. If the employee is not supposed to take those breaks then the employer's remedy is to fire the employee, not deduct pay. Your husband has a wage claim against the employer for the deducted time. Additionally, the employer seems to have retaliated against your husband for complaining of a wage violation, which is an additional claim against the employer.

Your husband should speak to a local employment lawyer about his claims. Wage claims allow for attorney fees and expenses to be paid by the employer as part of the recovery of wages.


It is unclear whether your spouse is smoking on breaks that are approved by his employer as to timing and length of break, or whether he is slipping off to smoke in addition to planned breaks. And yes, that can make a difference.

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