Can an employer take lunches off overtime pay? What is the penalty?

Ann Kiernan replies:

The law does not require the employer to provide a paid lunch period. But it does require that employers pay for all hours worked, even if the employer grants a paid lunch period and generous paid breaks.

There was a federal appeals case on this point just last year. At a Pennsylvania DuPont facility, employees working 12-hour shifts were paid for a 30-minute meal break and two other 30-minute breaks per shift. DuPont classified paid break time as hours worked for overtime purposes even though the law did require it to do so. These workers also spent between 30-60 minutes each day donning and doffing uniforms and safety gear and performing other activities before and after their shifts. This time was unpaid.

When the workers sued for unpaid overtime, DuPont’s defense was that, because it voluntarily treated break time as hours worked, that time should offset against the 30-60 minutes of daily unpaid pre-shift and post-shift time. The appeals court disagreed, holding that even if an employer goes beyond what wage and hour law requires and pays an employee for meal breaks, that generosity cannot be used to offset other potential overtime violations. Smiley v. E.I. DuPont De Nemours & Co., 839 F.3d 325 (3d Cir. 2016).

Posted 11-14-2017

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.