Michael L. Russell
Hospitals that automatically exclude meal breaks from employees’ compensated hours just might be in violation of the Fair Labor Standards Act, and they may owe some employees back pay, according to the contention of three lawsuits filed against Nashville-area hospitals since November.
Suits have been filed against Vanderbilt University Medical Center, Williamson Medical Center and HCA’s Summit Medical Center, all claiming that the wages of non-exempt employees (typically those who clock in and out) were automatically docked for a meal break, even if circumstances forced those employees to work through the break period. At issue is the automatic deduction, which then lays the burden on the employees to ensure that the time is added back to their work-hours total.
A predominance of the language in the three suits is identical, and all identically claim, “Under Defendant’s ‘Meal Break Deduction Policy,’ Defendant improperly and illegally shifts the burden to Plaintiff and class members to ensure that non-qualifying ‘meal breaks’ are not deducted from their pay. Even though Defendant knows that Plaintiff and class members are working during ‘meal breaks,’ Defendant fails to compensate Plaintiff and class members for their work, electing instead to sit back and accept the benefits of Plaintiff and class members’ uncompensated work.”
Counsel for the three plaintiffs, all nurses, is Michael L. Russell of Gilbert Russell McWherter in Jackson, Tenn. The firm and others across the country have solicited plaintiffs, usually by mail, for these meal-break suits against hospitals, with registered nurses particularly targeted because states’ public licensure records make those employees easier to identify.
“We saw a need on behalf of healthcare workers,” Russell said. “It appeared to us that it’s been a poorly kept secret that healthcare workers in hospitals have been worked off the clock during lunch. They’ve had their lunch automatically deducted when their supervisors and management knew that they were frequently — in fact, very frequently — working off the clock during lunch. That’s just compensable time. These are hard-working people, healthcare providers who provide a valuable service to the community. We just feel like they deserve to be paid for the hours that they work.”
Eric Stevens, an attorney with Miller & Martin’s Labor & Employment Practice Group, said that, particularly in a healthcare setting, it’s difficult for administrators and supervisors to keep track of who’s on break and who isn’t. That’s especially true of nurses.
“In the healthcare scenario particularly, when you get into direct patient care, generally there is not a meal time. If a nurse is taking care of a patient at noon, that nurse may take his or her meal break at 12:30 or whenever. It’s more difficult for supervisors to simply walk down a hall and say, ‘Those two should be on meal break because it’s 12 o’clock,’” he said. Stevens is defense counsel for Williamson Medical in that suit, and he agreed to speak with Nashville Medical News generally about the issue but not about the suit specifically.
“The Wage and Hour Division has recognized that automatic meal deductions are not what’s called a per se violation of the Fair Labor Standards Act,” Stevens explained. “Of course, employers are required to make sure that employees are paid for all working time.”
William N. Ozier, attorney with Bass, Berry & Sims, said most hospitals track employees’ time with a Kronos™ or similar system for clocking in and out. Most use the automatic deduction rather than requiring employees to clock out for a meal break and clock back in, since many times employees forget in the midst of their busy days. Using a Kronos-like system, employees slide a card similar to a credit card through the machine, and should hold down a button when they clock out if they worked through the meal break. “The instructions are very clear on these terminals,” said Ozier, who is VUMC counsel for that suit and who also agreed to talk to Nashville Medical News generally about the issue. He added that there’s usually an opportunity for employees to also inform an administrator if their time card doesn’t reflect the number of hours worked.
Encouraging supervisors to be open to employees who need to change their recorded hours worked was a recommendation to hospitals by both Stevens and Ozier. Other recommendations included:
- Educating and re-educating employees and supervisors if there is an automatic deduction policy.
- Training supervisors to watch more closely for employees who might not be taking required meal breaks.
- Sticking with a 30-minute meal break or more. “If it is 30 minutes down to 20 minutes, that’s where the Wage and Hour Department looks more closely at the issues of how meaningful is that meal break,” Stevens said.
- Regularly reviewing payroll records to ensure that employee reports of working through the meal break are accurately entered into the system.
The three suits each request status as a collective action. Should that be granted by the court, a suit would then potentially represent a host of other hospital non-exempt employees. A collective action is different than a class action; in a collective action, additional employees must elect to join the suit and must act to do so.
A similar lawsuit, filed in November 2007 against Memphis-based Baptist Memorial Health Care, has been certified as a collective action, and the plaintiff’s law firm, Crone & Mason, is soliciting additional Baptist employees to join the suit. Similar lawsuits across the country are winding their way through the courts, some succeeding as collective actions and others not.