Hi I have an employee who work 5 to 6 hours a day and any employee over 4.5 hours I tell them to take lunch and clock out for it. I have noticed the past week that he has not been clocking out for his lunch and I know he has not been working through it because he has been getting his free employee meals. Can I deduct the 30 minutes without his knowledge or do I have to tell him I am doing it?
Unless you can verify that the employee has been entirely free of all work duties for at least 30 consecutive minutes each day, you should pay him for the time.
Under the federal FLSA or Fair Labor Standards Act, an employee who is not completely relieved of all duties must be paid for his or her meal break. For example, a waitress who jumps up in the middle of her meal break to serve coffee or take an order, must be paid for the entire break. Even if she works only 5 minutes in the middle of a 65-minute break, she must be paid for the entire 65 minutes.
Also under that same law, an employee who takes a break of less than 20 minutes must be paid for the break. This is true, even when the employee chooses to take the shorter break.
So if your employee has been ordering a meal and gulping it down in 19 minutes, or taking a few bites in between working, the employee is entitled to payment for that time.
However, you as an employer can set a break policy and enforce it. The best tactic here would be to write up the employee for not following the break policy. Make it clear that he needs to clock out for 30 minutes on each shift over 4.5 hours, and that he may be terminated if he does not.
If you have a witness who says that this employee had an uninterrupted meal break of more than 20 minutes, then you can deduct that time from the employees wages. There is no need to inform the employee that you have made this adjustment. However, we would still advise writing him up for not propperly clocking in and out for meal breaks. (Failure to do so will almost certainly result in other employees *forgetting* to clock out.)
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