Case: Vitali v. Reit Management & Research, L.L.C., 88 Mass. App. Ct. 99 (2015)

Topic: Meal Breaks; Overtime; Class Action

Plaintiff’s Problem:  Am I entitled to overtime when I work through my paid lunch break?     

Plaintiff’s Background: The plaintiff, Donna Vitali, worked as a bookkeeper for a property management firm, Reit Management and Research (“Reit”). Donna was paid by the hour and, under statute as well as company policy, she was to be paid overtime at one and one-half times the regular rate for any work done in excess of forty hours in a given week. Donna worked five days per week, from 9-5, with a paid one-hour lunch break. On February 15, 2010, Reit implemented a new electronic timekeeping system, Kronos. Under Kronos, hourly employees were required to use their computer terminals to “punch in” when they first arrived at work and to “punch out” when they left.

When Kronos was first implemented, it did not have the “functionality” to allow employees to punch out for lunch and to punch back in when they returned. The absence of that feature created a potential discrepancy between the hours that an employee “clocked” using Kronos and the time they actually worked. To compensate for the discrepancy between hours worked and hours clocked, Reit adopted a practice of paying overtime to hourly employees only once they clocked forty-five hours for a given week unless the employees separately reported having to work in lieu of lunch. According to the company's payroll supervisor, the proper protocol for recording lunch time work in Kronos was for employees to access a “drop down” menu on their computer screen through which they could then input the time code “worked hours” for the relevant amount of time.

According to Donna, her work responsibilities required her to work during her lunch breaks on average three to four times per week. The employees in her unit did not have specifically scheduled lunch breaks; instead, people took them “when they could.” Donna always brought her lunch and ate it at her desk in her cubicle. While she was taking lunch breaks, people would bring her assignments that required prompt attention. 

Donna claimed that she regularly worked during her lunch breaks even though that time was not recorded in Kronos and filed a class action suit under the Massachusetts Wage Act.

What The Court Said: Yes. It is uncontested that Donna never successfully used the Kronos drop down menu protocol to record the lunch time work she claims to have performed and that she did not receive credit for any such work toward the accrual of overtime. Had she been credited for the work, she would have received some additional overtime compensation in those weeks in which her total worked hours exceeded forty. The judge deemed it critical that Donna had failed to report her lunch time work in accordance with available procedures but not fatal. An employee’s failure to record alleged overtime worked during paid lunch hour was the result of employer’s obtuse timekeeping procedures and lack of clear instruction.

Pursuant to the Fair Labor Standards Act, an employee must prove both that she incurred unpaid overtime work, and that the employer had actual or constructive knowledge that she was working overtime.  The employer tried to avoid the implication that it knew Donna was performing work during her lunch breaks and stressed that it had a policy in place. The Court noted that the employer should have known employees worked during lunch. In support of this conclusion, the Court noted evidence that the employer failed to explain the need to record lunch time work, that the process used to record lunch time work was difficult to understand, that the employer’s instructions for navigating this process were “contradictory, confusing, and incomplete,” that the company did not provide training with respect to this process, and that the employer was aware that employees were confused about recording lunch time work based on inquiries from plaintiff and others.

Employers have the discretion to  create policies that restrict employees from working overtime, but the FLSA requires that employers monitor their employees’ work schedules to confirm employees are not actually working overtime.