Wisconsin Employers Don’t Owe Employees Who Voluntarily Cut Their Meal Breaks Short

The U.S. Court of Appeals for the Seventh Circuit recently affirmed that Wisconsin wage and hour law does not permit employees to game the system with respect to full and free meal breaks.

Wisconsin, like many other states, does not require employers to pay employees for legitimate meal breaks. But, there are a few strings attached. Meal periods may be non-compensable for non-exempt employees only so long as: (1) the meal period is actually a meal period and not a rest break, coffee break, or snack break; (2) the meal period is thirty minutes or longer; (3) the employee is completely relieved of their duties; and (4) the employee is permitted to leave the company premises. (Under the federal Fair Labor Standards Act (FLSA), employers need not allow their employees to leave the work premises, and sometimes a meal break of 20 minutes is sufficient to maintain a non-compensable meal period.)

In wage and hour claims governed by Wisconsin law, employees have often argued that any break shorter than thirty minutes must be compensated in its entirety, even when the employer allowed the employee to take thirty minutes but the employee — on their own — decided to cut their meal break a little short. In the recent Wirth v. RLJ Dental opinion (issued on January 31, 2023), the Seventh Circuit rejected this argument, holding that Wisconsin’s regulations “focus[] on what the employer provided, not what the employee elected.”

The employer in Wirth, RLJ Dental, provided its office manager, Rebecca Wirth, an hour-long lunch period every shift. During the lunch period, Wirth was not required to perform any work, and was permitted to leave the premises. Nonetheless, Wirth often cut her break short, to less than thirty minutes, even after RLJ Dental reminded her to take a full thirty minutes or more for lunch. In fact, the record showed that Wirth had purposefully engaged in shortening her break to try to obtain increased compensation.

Wirth eventually filed a law suit in the U.S. District Court for the Eastern District of Wisconsin. She argued that RLJ Dental needed to compensate her for her entire break for every instance that the break was shorter than thirty minutes. The district court disagreed, and after Wirth appealed, so did the Seventh Circuit. The Seventh Circuit explained that the focus is on what the employer provides, not what the employee elects. Because RLJ Dental provided a lunch period of at least thirty minutes during which Wirth was completely relieved of her work duties, Wirth was not entitled to be paid even if she claimed that she was working during a shorter break. Otherwise, employees could take a 25 minute break, return five minutes early on their own accord, and trigger a legal claim for unpaid wages for the 25 minutes off. Wirth shuts down this tactic.

The Wirth opinion reminds employers in Wisconsin and throughout the nation to make sure they are complying with applicable meal break regulations. Employers who regularly do not compensate non-exempt employees for their meal breaks should make sure employees are provided a full thirty-minute or longer lunch break opportunity during which they are completely relieved of their work duties. This means employers should not be “pressured” to return from break early or interrupted during the break. The best approach is to consult with an attorney to verify that company policies and practices are in compliance with wage and hour law.

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