Joseph researched the Fair Labor Standards Act online, but even with its revised regulations, the answer isn't straightforward. The US Department of Labor requires that employees be compensated for breaks or rest periods shorter than twenty minutes. Longer breaks, including meal breaks, may or may not be compensable, depending on the circumstances. Understandably, the ambiguity of the phrase "depending on circumstances" makes the meal break question one of the most frequently asked."I worked as a driver for this company from 2003 until 2009 and had no idea that not getting proper lunch breaks could be an overtime violation," says Joseph. "The company provides rehab for at-risk youth and it was my job to drive them back and forth. There was no set schedule so most of the time I had lunch after the kids had their dinner, sometimes six hours after my shift started. It all depended upon how many clients (the youth) I had to pick up that day.
"I was still on the clock in case anything came up and they often did. For instance, after the clients ate dinner, the director wanted the lunchroom cleaned, so us drivers wiped tables, took out the trash, swept the floor, etc. By this time, I was five hours into my shift and I still haven't had a lunch break. After we clean up and there is time, we can grab whatever is left over. And you can't go out to grab a bite because you're on the clock. It was possible to leave, but only with permission from the director.
"When I came across your website I mentioned this issue to my wife and she said that getting a lunch break after a certain amount of hours was the law. In fact, not getting a lunch break cost me my job.
"I was laid off last August, mainly because I had an accident while driving. After we fed the kids and cleaned up, I had to drive someone home. The director called on my cell phone while I was driving and eating my lunch—talk about multi-tasking. I hit a tree and damaged the van. I told him that I was eating when he called, I was honest about the incident. Luckily nobody was hurt.
"I figure this company owes me overtime because I worked eight hours a day without a break. I don't think my co-workers are aware of lunch breaks, even today. I think we should have received at least 30 minutes of overtime on our paychecks. And if I had a lunch break, I wouldn't have got into that accident."
Overtime is payment to an employee of one and one half (1.5) times the regular hourly wage for work performed in excess of 40 hours in a seven-day week. For some occupations in Maryland, overtime is calculated based on a different period of time. Under state and federal laws, some employers are not required to pay overtime, and some employees are exempt from the right to receive it. To make the issue even more complicated, the Maryland Guide to Wage Payment and Employment Standards states the following:
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There is no law requiring an employer to provide breaks, including lunch breaks, for workers 18 years old or older (See section VI. D.). An employer who chooses to provide a break, however, does not have to pay wages for lunch periods or other breaks in excess of 20 minutes where the employee is free to leave the worksite (or workstation if leaving the workplace is physically impractical), in fact takes their lunch or break (whether freely choosing to leave or remain at the worksite), and the employee does not actually perform work. If employees are told their pay will be reduced each day by one-half hour for lunch, and they are not free to take this lunch period without an expectation or reasonable understanding that they must work or be on hand to work, they must be paid for the time.A wage and hour attorney in Joseph's state (not all states have the same policies) would be able to determine whether he and other drivers are entitled to overtime pay, and if indeed his former employer violated the FLSA.