Many hospitals in Wisconsin and across the country have implemented automatic meal break deduction policies for nurses and other hourly healthcare employees.
FEDERAL LAW ISSUES
FLSA Requirements. Employers are not required to provide employees with a meal period. If a meal period is provided, it is not considered time worked if the employee is "completely relieved from duty for the purposes of eating regular meals." See C.F.R. ? 785.19(a). 30 minutes or more is long enough for a bona fide meal period, although a shorter meal period may be bona fide under special circumstances. Id. An employee is not completely relieved from duty if he or she is "required to perform any duties, whether active or inactive, while eating." Id. It is not necessary that the employee be permitted to leave the work premises during the meal period. See C.F.R. ? 785.19(b). Some circuits, including the 9th Circuit and the 11th Circuit, have strictly applied the regulation that requires employees to be completely relieved from duty during unpaid meal breaks. However, most courts interpreting the DOL regulations have held that meal periods are not compensable so long as the employee can use the time for his or her "predominant benefit," meaning that the employee must be able to use the time as his or her own. Alexander v. City of Chicago, 994 F.2d 333, 339 (7th Cir. 1993) (FLSA requires remuneration for meal periods during which an employee is unable to "comfortable and adequately" pass the mealtime because the employee's time of attention if devoted primarily to official responsibilities). The 7th Circuit uses the predominant benefit test to determine the compensability of meal periods. See Barefield v. Village of Winnetka, 81 F.3d 704, 3 WH Cases 2d 353 (7th Cir. 1996). Courts may consider several factors in determining whether the employee can use a meal break for his or her predominant benefit: The limitations and restrictions placed on the employee, The extent to which those restrictions benefit the employer, The duties for which the employee is responsible during the meal period, The frequency with which the meal periods are interrupted, Whether employees are allowed to resume an uninterrupted break. Notably for hospital employees, being on call for emergencies during a meal period may not be sufficient to render the period compensable absent other significant restrictions. See Roy v. County of Lexington, 141 F.3d 533, 4 WH Cases2d 869 (4th Cir. 1998).
WISCONSIN STATE LAW ISSUES
Wisconsin Law provides a heightened standard for the uninterrupted meal break. Employees in Wisconsin are not required to be paid for bona fide meal periods, which are thirty (30) minutes or more of time free from duty. See Wis. Admin. Code ? DWD 272.12(1)(a)(1). Wisconsin employers must pay employees for "on duty" meal periods. See Wis. Admin. Code ? DWD 272.04(1)(c). Wisconsin uses a different standard for what constitutes an "on duty" meal period. An 'on duty' meal period is one where the employer does not provide at least 30 minutes free from work. Id. Any meal period where the employee is not free to leave the premises of the employer will also be considered an "on duty" meal period. Id. Wisconsin courts interpret "work" as hours spent in "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer's business." See Wis. Admin. Code ? DWD 272.04(12)(1)(a)(1). Authorized rest period or breaks of less than 30 consecutive minutes per shift shall be counted as work time for which there shall be no deduction from wages. See Wis. Admin. Code ? DWD 272.04(1)(d). Unionized hospitals must receive permission from the Department of Workforce Development to deviate from these regulations. "Whenever a collective bargaining agreement exists, the department may consider the written application of labor and management for a waiver or modification to the requirements of par. (c) or (d) based upon practical difficulties or unnecessary hardship in compliance. If the department determines that compliance with par. (c) or (d) is unjust or unreasonable and that granting a waiver or modification will not be dangerous or prejudicial to the life, health, safety or welfare of the employees, the department may grant a waiver or modification." See Wisconsin Administrative Code ? DWD 272.04(1)(e).
TAKEAWAY LESSONS FOR HOSPITALS
In Wisconsin hospitals should not assume that an automatic meal deduction policy is appropriate for their hourly employees because it could run afoul of both state and federal law. If employees do not realistically have the opportunity for a half-hour uninterrupted meal break on a regular basis, the hospital should not implement an automatic deduction policy. If hospitals do choose to implement automatic meal deduction policies, they should keep several things in mind. Draft written meal deduction cancellation policies and ensure they are adhered to in practice. Train employees on how to properly cancel deductions for all meal breaks they are unable to take. Employees should not be discouraged from canceling meal break deductions, and they should not need managerial approval to cancel a meal break deduction. Nurses and other staff carrying pagers or phones should be instructed to hand off these devices during their unpaid meal break. All employees subject to the policy must be free to leave the premises during their unpaid break. It is the employer's duty to ensure that uncompensated work is not being performed. The hospital cannot sit back and accept the benefits without compensating for them. See 29 C.F.R. ? 785.13.
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