A recent court ruling by the Sixth Circuit, which includes Kentucky, has received extensive publicity for its holding relative to employer’s obligations for employee lunch breaks. In White v. Baptist Memorial Health Care Corp., 11-5717 (6th Cir. App. 2012), the United States Court of Appeals for the Sixth Circuit held that the employee “bears some responsibility for the proper implementation of the FLSA’s overtime provisions […] an employee cannot undermine his employer’s efforts to comply with the FLSA by consciously omitting overtime hours for which he knew he could be paid.”^[1]

As a result, the burden to maintain accurate records may be shifting more towards the employee. In White v. Baptist Memorial Health Care Corp., an emergency room nurse – Plaintiff White — did not have a regularly scheduled lunch break due to the nature of her job. The Defendant’s employee handbook stated that employees working shifts of six or more hours would receive an unpaid meal break, the time for which would be automatically deducted from their checks. If an employee’s meal break was missed or interrupted because of a work-related reason, the employee would be compensated for the time worked. Each employee was to record all time spent working during his/her breaks in an “exception log.”  In addition, Defendant also had procedures for employees to report errors in payroll for inaccurate wages.

Plaintiff White initially recorded her interrupted meal breaks in the log and was compensated for those breaks. But she did not use the log or the payroll system to report the unpaid periods at issue in her suit. She occasionally told her supervisors she was not getting her meal breaks, but never told her supervisor or the HR department that she was not being paid. She then filed suit claiming she was not compensated as required by the FLSA. The district court granted summary judgment to Defendant and the Court of Appeals affirmed the ruling.

The Court of Appeals held that Defendant did not know or have any reason to know of the occasions Plaintiff White worked through breaks. Per the Court: “When White utilized the system she was compensated and when she failed to use the system she was not compensated.”

It is well established that employers must have a policy and procedure in place to report overtime and unpaid wages. The White decision indicates that the employee’s actions should also be thoroughly examined to evaluate an FLSA claim. Accordingly, the employer’s policies should be well-known to its employees and the procedures should be easy to follow, which may ultimately ease the employer’s burden by ensuring that employees are informed that such compliance is a two-way street.

_{[1] White v. Baptist Memorial Health Care Corp. at 8.}