NYS DOL Frowns Upon Hourly Nonexempt Automatic Meal Period Deductions in Business and at Work

As stated in previous posts, it is a non-negotiable requirement in New York state that nonexempt (e.g., eligible for overtime, usually hourly) employees must punch (in and out) for actual times taken for meal breaks on a daily basis as well as punching in and out for work each day themselves (NYS requires “contemporaneous” time tracking, which can be electronic punches, manual paper logs signed by the worker, or digital app check-ins.) If for some reason a punch is missed, the employee must make the request to the employer in writing to enter the missed punch on their behalf. Without that documented request, it exposes the employer to making changes on an employee’s timesheet without the employee’s written authorization – which is not compliant.

In response to a client’s new payroll vendor making automatic 30-minute meal deductions for NY-based nonexempt employees, I waited on the phone for nearly 30 minutes for NYS DOL to confirm (what I already knew) that it frowns upon automatic meal deductions for hourly nonexempt employees. Client subsequently reached out to instruct their payroll vendor to switch back to nonexempt employees entering their own actual meal break start and stop times.

As mentioned in a blog post from earlier this year:

In the state of New York, Section 162 of the NYS Labor Law requires that all employees – “blue collar, white collar and management” – take a minimum 30-minute meal period. This law states that “an employee who works a shift of more than six hours, which extends over the noonday meal period, is entitled to at least thirty minutes off within that period for the meal period.”

In the event of an employer audit, NYS DOL looks for several factors, including but not limited to:

• Hourly nonexempt employees are consistently tracking their own time in and out for their meal periods;
  • Auditors are looking for in-and-out meal punches tracked at different times each day, e.g.,  punched out at 12:05 PM on Monday; 12:15 PM on Tuesday, etc.
  • Audit Red Flag: Identical in-and-out punches each day – e.g., punching out for the 30-minute meal at 12 noon Monday – Friday; punching back in from the meal break at 12:30 PM every day can imply that the employer (not the employee) is entering meal punches for the employee.
• All employees (especially hourly nonexempt employees) take their meal period away from their respective work stations; and
• All employees take the required 30-minute minimum meal period.

In the event of a NYS DOL audit: ensure that you (and your nonexempt employees) are effectively and compliantly tracking daily meal period punches in and out in business and at work.