A Lunch Break a Day Keeps the Lawyers Away

Austin American-Statesman, November 26, 2010

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I asked in that voice my co-workers know so well, “Where the (bleep) did THIS come from??!!”

Working in a fast-paced, complex-care hospital setting is a juggling act for nurses, which is mainly what attracted us to the job and keeps us here. We like juggling.

Coming and going from work, staff nurses like myself swipe in and out of time clocks. Recently, the hospital system where I work joined others around the country by instituting a new policy for us to swipe out and back in for lunch breaks — throwing another ball for us to juggle.

Confronted with the new policy, I asked in that voice my co-workers know so well, “Where the (bleep) did THIS come from??!!” The policy’s about as popular as a spraying skunk at a wedding party. I set about to figure this skunk out.

The Fair Labor Standards Act of 1938 lived up to its name by establishing minimum wage, overtime pay, record keeping and child labor standards affecting full- and part-time workers in the private and public sectors. The act did not, however, require a meal or rest period.

The U.S. Labor Department regulations read, “Bona fide meal periods are not work time,” and employers do not have to pay for them. Automatically deducting 30 minutes from an employee’s workday for meals is a legal practice and what most employers have done. The complications in a 24/7 critical care setting such as ours is that the regs also require an hourly employee to “be completely relieved from duty” during a bona fide meal period.

Enter the Information Age, and with productivity pressures, multitasking and the nonstop pace of the information economy, the squeeze has been put on the once-sacrosanct tradition of a meal break. As a result, the Labor Department has recently cracked down on organizations that automatically deduct 30 minutes pay from employees yet cannot prove that the worker got an uninterrupted 30-minute meal break.

The Department of Labor recovered more than $1.7 million from a Catholic hospital system in St. Louis, $2.7 million from a system in Boston, and $7.25 million from Kaiser Permanente in California.

Seeing opportunity, plaintiff attorneys jumped on the bandwagon, especially after the stunning $172 million in damages a Northern California jury ordered Wal-Mart to pay workers for failing to provide meal breaks. A flood of lawsuits alleging meal break wage-and-hour violations spread across 12 states, with plaintiffs as varied as meat packers in Indiana, reality-show production assistants in California, customer-service agents at an airline in Florida, bus drivers in Georgia, muffler shop employees in Pennsylvania and county jail employees in Kentucky.

In March, health care got hit with 22 law suits along the East Coast and New York City, all focusing on nurses. The firm filing these actions has targeted more than 100 health care systems in 48 states, the Virgin Islands and Guam, often naming the president/CEO of the organization as individual defendants.

New cases are being filed continuously by firms across the country. Ascension Health and HCA hospitals have been hit, as have some of the most prestigious health care organizations in the country. The scope of the class now expands beyond nurses to all hourly employees subject to the automatic-deduction policy — respiratory therapists, secretaries, housekeepers, custodians, clerks and transcriptionists, among others.

To gather plaintiffs and information, firms send letters to nurses and other hospital employees whose names and addresses they obtain from nurse registries and other publicly available licensing registries. Nurses where I work have received letters.

Employment and labor law analysts say hospital liability is huge. One analyst commented that with the sheer number of suits, the high costs to defend them and the liability involved, meal break litigation is “the equivalent of a thermonuclear blast” to hospital budgets.

Perspectives differ. The U.S. Labor Department and the system where I work want people to be paid for the work they perform. Some on the corporate side see meal-break litigation as the criminalizing of human resources; a result of antiquated, overly complex wage-and-hour statutes; and plaintiff-attorney avarice. Labor advocates say the suits are a symptom of deteriorating corporate ethics and a drive for higher profits at the expense of workers’ well-being.

The best and brightest legal and human resources experts in the country advise that the only way for hospitals to protect themselves is to electronically document meal breaks. Ergo, the new policy in my workplace.

Record keeping is astronomically complicated in hospital settings. Nurse instincts are to put patients first, and for meal breaks, we have always managed (with exceptions of course) to creatively and resourcefully break to eat and relax while making sure we’re available for what’s needed by our patients, the health care team and work flow.

I doubt swiping for meal breaks will ever be popular with clinicians anywhere in the country. Right now, inelegant as it is, it seems the only way to protect the organization from financial damages from legal action.

Nurses will find creative and resourceful ways to incorporate the practice into our juggling routine.

[This commentary can be viewed at http://www.statesman.com/opinion/inglis-a-lunch-break-a-day-keeps-the-1073732.html.]

Toni Inglis, MSN, RN CNS (retired), FAAN, a lifelong Austin resident, is a retired neonatal intensive care nurse and editor of NursingNews. She also wrote a monthly opinion column for the Austin American-Statesman editorial pages for 10 years.