On May 15, 2008 the Department of Labor (“DOL”) issued an opinion in response to an inquiry concerning an employer’s break and meal policy under the Fair Labor Standards Act (“FLSA”). In addition to other areas of inquiry, the DOL responded to the question of what happens when an employee fails to take a meal break or other allotted break during the day. In some instances, the employee’s refusal to take the allotted break is in violation of a company policy stating that employees must take all such breaks during the work day. Issues raised by this problem include: whether the employee is entitled to additional straight time if the hours worked in a given workweek do not exceed 40; whether the employee is entitled to overtime if the hours exceed 40 in a given workweek despite the employee’s violation of company policy; and, what is the role of FLSA’s recordkeeping requirement for employers in such situations?
