The U.S. Department of Labor (DOL) released an opinion letter on July 29, 2008 clarifying that an employer is required to compensate an employee for all the hours worked, even if that includes time worked in violation of company policy such as through a required meal break.  The company at the heart of this issue had a Break and Meal Policy which stated that “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.”

The policy also provided that “there may be instances when, because of staffing or workloads, a meal period may not be available to all staff members. If any nonexempt 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 time card so he or she will be compensated for the time.”

The employer asked the DOL for its opinion on whether additional straight time (i.e., not overtime) would be due when an employee violates company policy by skipping a meal break and failing to notify the manager that the break was missed. The employer also asked the DOL to assume that the worker had worked less than 40 hours in the workweek and that the minimum wage still would be received, even if the employer did not pay additional straight time.

The DOL stated that the employer “must compensate the employee for all hours worked, including the time worked during the missed meal period,” though it went on to note that if an employee receives at least the minimum wage for all hours worked, including the time worked because of a missed meal period, no additional compensation is due under the Fair Labor Standards Act (FLSA). But the DOL reminded that FLSA regulations require accurate recordkeeping of hours worked each workday, as well as total hours worked each workweek for covered and nonexempt employees.

And, the DOL added, the time worked through the missed meal period would be hours worked for purposes of determining any overtime compensation. “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,” the DOL stated.

The employer also asked the DOL to suppose an employee instead violates a policy prohibiting all forms of off-the-clock work. Even though the employee is scheduled to work 35 hours per week, the worker begins work early or works after the regular finishing time. Would additional straight time be due then?

The employee must be paid for all hours worked at the agreed rate in addition to any overtime for all hours over 40, the DOL answered.

What if the employer advised the employee in writing not to ever work any unrecorded work hours and the employee who violated this policy was subject to disciplinary action, the employer inquired. Would the DOL’s answer be different then?

The DOL said it did not have enough information to answer this question, but referred to FLSA regulations to remind the employer 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”.