June 23, 2008

The U.S. Department of Labor has clarified compensable work time under the Fair Labor Standards Act in regard to meal breaks, straight time and overtime. In an opinion letter dated May 15, 2008, the department reached the following conclusions:

• If an employee fails to take a 30-minute unpaid meal break and the failure to take a meal break does not cause the employee to work more than 40 hours in the workweek, no additional compensation is due to the employee if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
  
• If an employee fails to take a 30-minute unpaid meal break and the employee does work more than 40 hours in the workweek, the 30-minute unpaid meal break must be counted for purposes of determining overtime compensation. An employee must be paid all straight time wages due for all hours worked before an employee can be said to be paid statutory overtime compensation due.
  
• If an employee who is regularly scheduled to work 35 hours per week works before the employee's scheduled start time or after the employee's scheduled end time and the employee's total hours are less than 40 hours per workweek, the employee is not due additional straight time compensation if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
  
• If an employee receives certain types of premium pay that are not otherwise legally required, that pay need not be included in the employee's regular rate of pay for purposes of computing overtime compensation. Also, certain types of premium pay may be credited toward the employee's overtime compensation requirements.
  
• Rounding of time is allowed so long as the employer does not arbitrarily fail to count an employee's fixed or regular working time. Rounding to the nearest five minutes, one-tenth or one-quarter of an hour is acceptable if, in the aggregate, the employer compensates the employees properly for all the time they have worked.

Keep in mind that this opinion letter provides guidance interpreting the Fair Labor Standards Act. Application of state laws may result in a different analysis.

Although courts are not required to abide by DOL opinion letters, the letters are generally given substantial weight as persuasive authority. The opinion letter will be published and made available on the DOL website, at www.dol.gov. A copy of the opinion letter is attached below in PDF format.

DOL Opinion Ltr re what is work time

© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at www.jacksonlewis.com.  Jackson Lewis LLP is a national workplace law firm with offices nationwide