FLSA2008-7NA — Missed meal breaks, premium pay offset, unrecorded work and rounding

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-7NA

May 15, 2008

Dear Name*:

This is in response to your request for an opinion regarding an employer’s break and
meal policy under the Fair Labor Standards Act (FLSA).
∗

Your client has written policies regarding break and meal periods which provide:

• The company may offer employees a 15-minute break during each shift of six or
more hours. There are normally no guaranteed break periods when the employee
is working overtime. Break periods begin as soon as the employee has removed
himself or herself from the scheduled daily work routine.

• All employees working six or more hours in a shift must receive a 30-minute,
uninterrupted, and unpaid meal period. The meal period requirements cannot be
waived by the employee nor substituted for any other time.

• There may be instances when, because of staffing or workloads, a meal period
may not be available to all staff members. If any non-exempt employee does not
take a meal period as required by the New York State Department of Labor, that
employee should notify his or her manager and note this on the timecard so he or
she will be compensated for the time.
.
• Unused break periods or meal periods cannot accumulate nor can they be
combined.

In light of this policy, your client presents six questions. We answer the questions in the
order in which you present them in your letter.

Q1: “If an employee fails to take a meal break and does not notify the manager that he
did so in direct violation of the policy, is additional straight time compensation due if less
than 40 hours were worked (assuming minimum wage still was received)?”

A1: “Work not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11.
Thus, the employer must compensate the employee for all hours worked including the

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at www.wagehour.dol.gov.

time worked during the missed meal period. In a workweek in which no overtime hours
have been worked, however, an employee subject to section 6 of the FLSA is considered
to be paid in compliance with the FLSA if the employee’s total wages for the workweek
divided by the compensable hours worked equal or exceed the applicable minimum
wage. Thus, in the situation described above, if the employee receives at least the
minimum wage for all the hours worked (including the time worked because of a missed
meal period), no additional compensation is due.

Please note that
29 C.F.R. § 516.2(a)(7) requires accurate recordkeeping of hours worked
each workday and total hours worked each workweek for covered and nonexempt
employees.

Q2: “Is the ‘missed meal’ period considered work time for purposes of determining
overtime compensation?”

A2: The time worked because of a missed meal period is hours worked for purposes of
determining overtime compensation. See Wage and Hour Opinion Letter
FLSA2007-
1NA (May 14, 2007). The employee must be paid for all hours worked at the agreed rate
plus the overtime premium (one half the regular rate) for all hours worked over 40 in a
workweek. Before an employee can be said to be paid statutory overtime compensation
due, the employee must first be paid all straight time wages due for all hours worked
under any express or implied contract or under an applicable statute. See
29 C.F.R. §
778.315; see also Wage and Hour Opinion Letter FLSA2004-8NA (Aug. 12, 2004).

Q3: “Assume that an employee is regularly scheduled to work 35 hours per week. If he
or she begins work early or works after the regular finishing time, is additional straight
time compensation due (assuming that, even with these unrecorded, extra hours the
worker received the minimum wage for all hours of work and also assume that a
published policy prohibits all forms of off-the-clock work)?”

A3: See A1. Also, as indicated in A2 above, if the additional hours worked result in the
employee working in excess of 40 hours in a workweek, the regular rate of pay must be
paid for all hours worked and the one-half time overtime premium for all hours over 40.
The overtime premium “cannot be said to have been paid to an employee unless all the
straight time compensation due him for the nonovertime hours under his contract (express
or implied) or under any applicable statute has been paid.” 29 C.F.R.§ 778.315.

Q4: “Would the Department of Labor change its response to Q3 if the employee was
advised in writing
not to work any unrecorded work hours at any time and was subject to
disciplinary action?”

A4: We do not have enough information to determine whether the response to Q3 would
change even if the employee was advised in writing not to work unrecorded hours and
was subject to disciplinary action. Such determinations are fact-specific and must be
made on a case-by-case basis. See e.g., Chao v. Gotham Registry, Inc., 514 F.3d 280(2d
Cir.2008). In general, “it is the duty of the management to exercise its control and see

that the work is not performed if it does not want it to be performed. It cannot sit back
and accept the benefits without compensating for them. The mere promulgation of a rule
against such work is not enough.”
29 C.F.R. § 785.13.

Q5: “If an employee receives premium pay that is not otherwise due (e.g., time and one-
half for working over 8 hours in a day) is that an off-set against any straight-time pay or
overtime pay that may be due in that workweek?”

A5: Under sections 7(e)(5), (6), and (7) of the FLSA, certain premium payments made
by employers for work in excess of or outside of specified daily or weekly standard work
periods or on certain special days are regarded as overtime premiums. In such situations,
the extra compensation provided by the premium rates need not be included in the
employee’s regular rate of pay for the purpose of computing overtime compensation.
Moreover, under section 7(h) of the FLSA that extra compensation described in sections
7(e)(5), (6), or (7) may be credited toward the overtime compensation payments. See
29
C.F.R. § 778.201.

For example, if an employee’s employment contract requires him or her to be paid time
and one half the base rate for working in excess of eight hours in a day, “the extra
premium compensation paid for the excess hours is excludable from the regular rate
under section 7(e)(5) and may be credited toward statutory overtime payments pursuant
to section 7(h) of the Act.”
29 C.F.R. § 778.202.

Q6: “Does the Department of Labor have a guideline for time that is de minimis or
subject to rounding off? The employer utilizes electronic time clocks that record
‘punched time’ in one-minute increments.”

A6: As noted in 29 C.F.R. § 785.48(b), for enforcement purposes, the payment of wages
based on recording and computing time to the nearest five minutes, or the nearest one
tenth or quarter of an hour, will be accepted provided that it is used in such a manner that
it will not result, over a period of time, in failure to compensate the employees properly
for all the time they have actually worked. See Wage and Hour Opinion Letter
November 7, 1994 (copy enclosed); see also
Field Operation Handbook § 30a02(b).

As explained in
29 C.F.R. § 785.47, in recording working time, insubstantial or
insignificant periods of time outside the scheduled working hours that cannot practically
be precisely recorded may be disregarded. The courts have held that such periods of time
are de minimis. This rule applies only where a few seconds or minutes of work are
involved and where the failure to count such time is due to considerations justified by
industrial realities. An employer may not arbitrarily fail to count as hours worked any
part, however small, of the employee’s fixed or regular working time. Where an
employer fails to pay an employee for any part of the employee’s fixed or regular
working time, however small, it would be considered a violation of the FLSA. See
FLSA2004-8NA; see also Field Operation Handbook § 30a02(a).

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issue addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Monty Navarro
Office of Enforcement Policy
Fair Labor Standards Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).