Overtime laws require an employee be paid overtime for all hours worked in a workweek more than 40. Employers are not required to pay an employee for the time spent on a meal break. But if the employer does pay the employee for the meal break time, can that time be used to set off or negate an employee's overtime? That issue came up in the recent case, Smiley v. DuPont Nemours & Company.

The employees worked 12 hour shifts; they sought overtime pay for time they spent putting on and taking off (called "donning and doffing" in overtime law lingo) their protective clothing and for time spent on "shift relief" work after their regularly-scheduled shift, which regarded time spent getting the next shift people up to speed on production and operational issues. This time amounted to from 30 - 60 minutes per day.

The employer paid the employees for a 30 minute meal break each shift. Very significantly, the pay for the meal breaks was included when calculating the employees' regular rate of pay and was included as part of their total hours worked each week. Also importantly, the paid meal break time always exceeded the time spent donning and doffing and on shift relief work. There was no dispute that the meal breaks were bona-fide.

The Third Circuit ruled that the inclusion of the meal break time in the employees' regular rate of pay was determinative, noting that "nothing in the FLSA" authorizes offsetting of pay "that it included in calculating an employee's regular rate of pay against its overtime liability." Instead, the FLSA allowed an overtime offset only for compensation paid an employee at a premium rate. Therefore, the meal break time could not be offset against the time spent donning and doffing and on relief work; the employees were entitled to overtime pay for this worktime.

Employers are not required to pay for time spent on an employee's meal break. Kentucky law requires that the employee be allowed time for a reasonable meal break as close to the middle of the employee's shift as reasonably possible. But if the meal break is unpaid, it has to be a real break, a bona-fide meal break in the overtime law lingo, where the employee is not required to continue working during what it supposed to be a meal break. We've written many times before on the issue of meal breaks and addressed questions that arise surrounding them: Working Through Lunch - Do I Have to be Paid?; Does Kentucky law require a lunch break for employees? ; When is a meal break really a meal break?; What does Kentucky law say about lunch breaks for employees?; Does Kentucky law require a rest break for employees?

Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the overtime and wages they've earned but not been paid; contact him at 859-254-7076.



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