No Pay Owed for Meal Breaks to Employee Who Was Not Working



​An employer is not required to pay an employee for lunch breaks when she was admittedly not working during her break, despite the employee clocking back in before 30 minutes had elapsed, the 7th U.S. Circuit Court of Appeals ruled. The court's decision upheld a federal district court ruling on Wisconsin's law regarding break times and hours worked.

The employer is a dental services organization in Wisconsin with multiple offices across the state. The employee was hired as an office manager for one of the locations. The office closed from 1 p.m. to 2 p.m. every day and did not schedule patients during that time. Employees were expected to take an hourlong lunch break, during which they were not required to work and were free to leave the office. The employee handbook instructed employees to clock out for lunch time and not clock back in until lunch was finished and the next scheduled patient had arrived.

Wisconsin law requires employers to compensate employees for breaks less than 30 minutes but does not consider bona fide meal periods as "hours worked." To be bona fide, a meal period must be 30 minutes or more, and the employee must be completely relieved of duties. In addition, employees must be free to leave the workplace during meal breaks. If the break time does not meet these conditions, the period is treated as paid work time.

During her nine months of employment, the employee frequently clocked out for lunch for less than 30 minutes, doing so a total of 89 times. Her supervisor repeatedly instructed her to take full lunch breaks, but the employee ignored those instructions and at one point responded by stating that the employer could not force her to take the full break. The employer paid the employee for all the time she was clocked in during the lunch period but eventually terminated her employment.

The employee sued in federal district court, arguing that the employer also should have paid for the time she was clocked out for less than 30 minutes, even though she admitted that she did not work during that time. The district court ruled in favor of the employer, finding that the employer had allowed a regular hourlong lunch break and that the employee chose not to take the full break, even though her duties allowed for her to do so. The district court stated that the employee "was well aware of the law and intentionally manipulated her lunch hour so as to increase her earnings."

The employee appealed the ruling, arguing that Wisconsin law imposes a bright-line rule that if an employee elects to take any break of less than 30 minutes, then the entire break period offered by the employer must be compensated. The 7th Circuit disagreed.

The appeals court said that the employee's focus on her actions, instead of what the employer provided, was misplaced. The employee had attempted to transform a noncompensable meal period into a compensable rest period by clocking back in after less than 30 minutes, despite her employer providing a full hour and repeatedly instructing her to take the full break. The employer provided 30 minutes or more during which the employee was completely relieved from duty for the purposes of eating lunch, the 7th Circuit noted.

Wirth v. RLJ Dental S.C., 7th Cir., Nos. 22-2122 (Jan. 31, 2023).

Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for Brightmine™ HR & Compliance Centre, a service helping HR build successful and purposeful workplaces.