Make sure employees don’t work on breaks; burden’s on them to prove they did — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Make sure employees don’t work on breaks; burden’s on them to prove they did

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Here’s a bit of good news for employers trying to make sure they don’t violate the Fair Labor Standards Act: The 8th Circuit Court of Appeals, which covers Minnesota employers, has ruled that employees—not employers—have the initial burden of showing they actually worked during unpaid lunch or other break periods.

Other federal appeals courts have ruled the other way, declaring that employers have to show employees didn’t work during unpaid breaks if the employees claimed they did.

Recent case:
Charles Hertz and a group of fellow sheriff’s department employees sued their employer for alleged unpaid overtime. They claimed they regularly worked through lunch and other meal breaks.

When the case first went to trial, the jury was told that to win the case, the employees had to show they worked during the unpaid meal breaks. The jury concluded the employees hadn’t met their burden, and ruled against them.

The employees appealed, claiming the jury should have been instructed that it was the employer that had to show a negative—that the employees didn’t work during their breaks.

The 8th Circuit Court of Appeals dismissed the case, concluding that the other federal appeals courts that had decided similar cases were wrong when they placed the burden on employers.

The court said employees were in the best position to prove that their employers benefited from whatever work they claimed to have done on meal breaks. The court added, “To require that the [employer] prove a negative—that an employee was not performing 'work' during time reserved for meals—would perversely incentivize employers to keep closer tabs on employees during their off-duty time.” (Hertz, et al. v. Woodbury County, No. 08-2612, 8th Cir., 2009)

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