WorkComp Advisory
newsletter archive case studies articles

DOL Opinion Letter: Missed Meal Breaks, Overtime

A recent opinion letter from the U.S. Department of Labor (DOL) addressed the issues of missed meal breaks, overtime, and rounding off time under the Fair Labor Standards Act (FLSA). In responding to an employer's questions about its break and meal policy, the DOL offered these guidelines:

If an employee misses an unpaid meal break but still works fewer than 40 hours in the workweek, the employer “must compensate the employee for all hours worked, including the time worked because of the missed meal period.” However, no additional compensation is due under the FSLA as long as "the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage."

The time worked during the missed meal period counts as hours worked for purposes of determining overtime. As the DOL observed, "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."

If an employee begins work early or works after regular finishing time in violation of company policy, the employee must be paid for all hours worked at the agreed rate and overtime for all hours over 40. When asked by the employer if they advised the employee in writing never to work unrecorded hours and the violation would result in disciplinary action, the DOL responded that it did not have enough information to answer, but referred to FSLA regulations that “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.”

An employer may round off time to the nearest five minutes, tenth of an hour, or even quarter of an hour, as long as over a period of time the employee is compensated properly for all time actually worked.

Download a PDF version of the letter here.