Be wary when employees ‘volunteer’ to work through lunch

When workers volunteer to attend work-related meetings during their lunch break, are they dedicated employees eager to go the extra mile, or do they signal a legal problem? That’s an issue recently put to a group of attorneys who focus on employment law matters. Their advice: Be careful. 

The attorneys were asked what to do about a few exempt and nonexempt employees who want to volunteer to have a monthly meeting during their lunch break on company premises. The employer asks if such a meeting would be considered time worked that should be paid.

Reggie Gay, an attorney with the McNair Law Firm in Greenville, South Carolina, points out that employees who are not exempt from the Fair Labor Standards Act (FLSA) must be compensated for work-related voluntary meetings because FLSA regulations state that “work not requested but suffered or permitted is work time.”

Nonexempt employees are to be paid for rest breaks that are shorter than 30 minutes. Longer breaks, including meal breaks, don’t have to be paid as long as employees are completely relieved of duty, Gay says.

“To determine whether a break is compensable, courts look at a number of factors, including the restrictions placed on employees, the extent to which the restrictions benefit the employer, employees’ duties during the break, and the frequency of interruption,” Gay says. So employees not relieved of duty should be paid.

“Note that employers can require employees to stay on the premises or use a designated lunch area as long as employees are completely relieved of work,” Gay says. “Simply put, leave employees alone on their breaks, and allow them to use the time for their purposes.

Some employees are exempt from FLSA requirements, but “exemptions are narrowly construed,” Gay says, and employers need to make sure employees are classified correctly. The most common exemptions are the executive, administrative, professional, outside sales, and computer professional exemptions. Employees qualifying for an exemption must meet both the duties test and the salary test. Employees meeting those requirements may be paid a fixed amount regardless of time worked and therefore would be able to attend the voluntary meetings without being paid for the time.

Jerrald L. Shivers, an attorney with The Kullman Firm in Jackson, Mississippi, agrees that nonexempt employees spending time discussing work-related issues or improving productivity or products must be paid, but casual lunchroom conversations aren’t compensable.

Jonathan C. Sterling, an attorney with Carlton Fields Jorden Burt in Hartford, Connecticut, also says nonexempt employees would need to be paid for the voluntary meetings. “To avoid an obligation to pay, prohibit nonexempt employees from attending the meetings,” he says.

H. Mark Adams, an attorney with Jones Walker LLP in New Orleans, says the voluntary lunch meetings constitute a scenario “fraught with potential pitfalls.” Besides making sure nonexempt employees are treated correctly under the FLSA, the employer needs to understand the purpose of the volunteer meetings. “If the purpose is to discuss employee concerns, gripes, or grievances, you may have an informal labor organization on your hands, which opens a whole Pandora’s box of issues,” he says.

Mark Schorr, an attorney with Erickson & Sederstrom, P.C. in Lincoln, Nebraska, says the question about the voluntary lunch meetings is complicated by the fact that both exempt and nonexempt employees want to participate. “Even when employees volunteer to work ‘off the clock,’ if you permit them to perform work that benefits your company, the time spent doing so is compensable working time unless an individual employee is truly exempt from overtime,” he says.

Nonexempt employees’ time would be compensable unless they are not performing any duties that benefit the company. “In short, you may not avoid your obligations under the (FLSA) simply because employees believe they are ‘volunteering’ to attend a meeting that benefits their employer,” Schorr says.

Source: HR Hero Line