A recent settlement of almost $500,000 to resolve allegations of meal break violations between a San Francisco based children’s clothing retailer and the Massachusetts Attorney General’s Office serves as a reminder to employers of the importance of the Massachusetts meal break law. The Gymboree Corporation agreed to pay $463,600 to resolve all outstanding claims raised by the Attorney General. The settlement requires Gymboree to pay a total of $130,000 in payments to current and former managers, $320,000 in penalties to the Commonwealth, and to allocate $13,600 to update company policies to ensure future compliance with the law.
The Massachusetts meal break law is oftentimes overlooked, but as the Gymboree settlement demonstrates, violations of the law create serious exposure to employers. The statute, M.G.L. c. 149, s. 100, provides:
No person shall be required to work for more than six hours during a calendar day without an interval of at least thirty minutes for a meal. Any employer, superintendent, overseer or agent who violates this section shall be punished by a fine of not less than three hundred nor more than six hundred dollars.
Certain employers in specialized industries are exempt from the law.
According to the Massachusetts Attorney General’s office, the statute requires that all employees receive a 30-minute break after six hours of working. The break may be unpaid. An employee must be free to leave the workplace during the break. An employee may voluntarily give up the meal break, but must be paid for all hours worked. Compensation for the 30-minute meal break must be paid if the employee has voluntarily agreed to waive his or her meal break by (1) working through his or her meal break, or (2) remaining on the premises at the request of the employer during the meal break.
The most significant exposure to employers typically arises out of a failure to pay wages for employees who work through unpaid meal breaks. Many employees choose to work through a lunch break for their own convenience, but many payroll systems automatically deduct for meal break periods or the employer simply assumes employees take meal breaks and do not pay wages for the allotted time. When an employee works through a meal break or is required to stay on the premises during such a break, the employer must pay for that time. A failure to pay for such time violates the Massachusetts payment of wages statute (M.G.L. ch. 149 s. 148), which exposes the employer to potential claims for treble (triple) damages and attorneys’ fees.
Moreover, even if an employer provides paid meal breaks, the failure to provide an actual break when the employee is free from work responsibilities creates exposure to the employer. Although there is no private right of action for employees denied a meal break, the Attorney General may pursue an enforcement action against the employer for violations. As noted above, violations are punished by fines ranging from $300 to $600 per violation. The Attorney General’s office has indicated in the past that it considers each failure to provide a break a violation. If this enforcement position prevails, fines may mount quickly.
As the Attorney General indicates, however, an employee may voluntarily waive the meal break. Of course, such a waiver must be obtained from the employee without any coercion or pressure. Because of the risk involved in meal break violations, if an employer allows employees to work through breaks we recommend that it obtain written waivers of the meal break period. A written waiver will help demonstrate that the employee voluntarily waived his or her right to a break
In addition, employers should audit their meal break practices. Internal or external counsel should be retained to assist in the audit to protect the results from disclosure through the attorney-client privilege. An audit should examine, among other items, whether the employer provides appropriate meal breaks for each six-hour period worked, whether employees work through breaks or are required to remain on the premises (thus necessitating payment for the break period), whether written waivers are obtained for employees who elect to waive the meal period, and whether employees are allowed to pray during a meal break (which is a requirement, according to guidance from the Attorney General’s office because a meal break is considered free time).