When must you pay people for working while on break? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

When must you pay people for working while on break?

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Issue: Court ruling adds uncertainty to when you must pay hourly employees for work performed on their breaks.

Risk: Liability for back and overtime pay.

Action: Urge managers to curtail work during breaks or keep track of and pay for it.

Spread the word that managers should not impose on nonexempt employees' breaks unless they're willing to pay for that time. And put the policy in writing. That may force managers to juggle their staffing to ensure proper coverage, but that's cheaper than paying back pay, overtime and penalties after a lawsuit.

That's what happened to an Oklahoma hospital when nurses sued for back pay and overtime under the Fair Labor Standards Act (FLSA) because they were regularly interrupted during their meal breaks. Some watched patient monitors and responded to problems. Others answered phones, responded to pages and stayed on the patient floor. The hospital didn't pay those nonexempt, hourly employees for their meal breaks, even if they spent most of their breaks working.

A federal appeals court said the hospital must pay for the nurses' meal breaks if the "degree of interruption caused [the nurses] to spend their meal periods primarily for Hillcrest's benefit," and sent the case to trial. (Beasley v. Hillcrest Med. Ctr., No. 02-5121, 10th Cir., 2003)

FLSA says you don't have to pay nonexempt employees for time they spend on bona fide meal periods, as long as the employees are "completely relieved of duty." Many courts soften this standard by ruling that if employees spend their break time "predominantly" for their benefit, your organization doesn't need to pay for that time.

Rule of thumb: The more interruptions that occur, the more likely a court will find that the break was spent predominantly for the organization's benefit, making the time payable. So if a manager calls an employee to work for whatever reason during a break, tell the manager to consider it work time and pay for it.

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