In complying with their obligations under federal and state wage-and-hour laws to pay employees for all hours worked, employers rightly and understandably crave certainty in the guidance provided to them by courts and administrative agencies. Unfortunately, as the Rolling Stones are famous for saying, “You can’t always get what you want.” Rather, the framework developed by courts and the U.S. Department of Labor are divergent, and as a result create two sets of different rules that confront employers. This article focuses on the application of these rules in the context of employee meal breaks as one example of this challenge, and offers recommendations for a path forward in the wake of uncertainty.
Given the mushrooming of Fair Labor Standards Act litigation (a more-than 350 percent increase in the number of federal cases filed over the past 10 years from approximately 2,000 in 2001 to more than 7,000 in 2011), the unsettled nature of the law in this area creates significant challenges for employers.
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