With email and phones always on, many employees don’t think twice about responding to messages while they’re eating lunch at their desk. But as people become more connected and off-the-clock hours blur into work time, employers should consider ways to become more conscious of the potential legal implications of allowing employees to work through break periods, said William Pokorny, an attorney at Franczek Radelet P.C. in Chicago. 

“In most cases that won't be a big deal," Pokorny said. "But if the employee's relationship with the organization goes sour, it may be enough to quite literally make a federal case.” 

Pokorny pointed to a recent ruling from a Chicago federal judge, to allow a jury to hear arguments in a suit over whether an employee regularly worked through his half-hour lunch break and should have had those hours accounted for when deciding whether he should be eligible for time off to care for his sick mother.

Michael Caggiano, a former Illinois Department of Corrections employee, claims he was fired over absences that should have been protected by the Family Medical Leave Act. Caggiano took leave during several periods in 2011 and 2012 to care for his mother, who was ill. 

To be eligible for FMLA, an employee must work 1,250 hours per year. The DOC claimed that, on his 7.5-hours-per-day schedule, Caggiano wasn’t eligible. However, the plaintiff alleged he frequently ate his lunch while on duty in the dayroom with inmates because his shift was understaffed and no one could take over for him. He claimed that his breaks should have counted as work time.

The DOC countered that the off-the-clock time should not be counted because Caggiano’s supervisors were unaware that he was working through lunch. It filed a motion for summary judgment, saying Caggiano’s testimony that he worked isn’t enough evidence to warrant a trial. U.S. District Judge Robert W. Gettleman disagreed and denied the DOC’s motion.

The suit demonstrates the importance of training managers on wage and hour compliance, Pokorny said.

“If the plaintiff's claims are true, it's hard to believe that management really had no idea that he was working through lunch on a regular basis," he said. "And if they knew, they either should have stopped it or made sure he was paid. Unfortunately, a lot of managers are under the incorrect impression that if an employee isn't reporting the extra work time and they didn't authorize it, they don't have to worry about paying overtime. That's just not the case… . We don't know whether that's what happened at the DOC — the court will have to sort that out at trial.”

Under the Fair Labor Standards Act, employers must pay their workers for all the hours they’re “suffered or permitted” to work. It’s a broad requirement, Pokorny said, but it means employers can’t simply set a policy telling workers they can’t collect unauthorized overtime.

“If a manager sees someone working through their lunch hour, they need to either stop the employee from working or make sure the employee is paid,” he said.

Employers will only “totally avoid liability for off-the-clock claims," if they prevent non-exempt workers from working during breaks or pay them when they do, he added. For example, that could involve a policy that states clerical staff from eating lunch at their desks or instructing managers to know their workers’ schedules, including when they’re available to respond to messages.

“Management as a whole can work to foster respect for established schedules and a culture of reporting and paying for all hours worked,” Pokorny said. “The key to all of this really is training. Just as many employers made a regular practice of sending their managers through sexual harassment prevention training when sexual harassment suits became common, employers today need to educate their managers on wage and hour law and the perils of ignoring off-the clock work.”

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