FLSA lawsuits based on missed meal breaks and automatic-deduction policies are one of many current trends in of wage-and-hour litigation. Meal-break claims brought by nurses and hospital staff are a particularly common scenario. But employers in the health-care sector need not give up hope, as there have been several recent opinions in favor of the employer in such cases. See FLSA Victory, Class Certification Denied. A recent decision by the 6th Circuit offers another positive example.
In White v. Baptist Memorial Health Care Corporation, (6th Cir. Nov. 6, 2012),the plaintiff, an ER nurse, did not have regularly scheduled meal breaks but was permitted to take them as the demands of her work allowed. The hospital had an automatic-deduction policy, whereby 30 minutes were deducted from time worked unless the employee submitted a time-exception form. The plaintiff in the case did not submit the form when she missed her meal break and did not complain that she was not being paid for that time.
After the district court awarded summary judgment to the employer, the employee appealed to the Sixth Circuit. The appellate court affirmed the decision, finding that the employee's failure to comply with the hospital's procedures by submitting the time-exception form precluded the hospital from knowing about the unreported time.
This line of reasoning is similar to the affirmative defense available to employers in harassment lawsuits. The theory behind it is that an employer cannot be held liable for conduct of which it does not know. The burden to report unlawful harassment--and, in this case, unpaid time--falls to the employee.
This is not only a logical holding but, also, an important one for employers. It supports the idea that an employee will not be permitted to sit on information and wait to use it against her employer whenever she's so inclined. The decision is a bar against "Gotcha" litigation, which I've also described as "Legal Extortion." With any luck, federal courts will continue to embrace this approach in similar FLSA cases and collective actions.