Under the Fair Labor Standards Act, employers are required to maintain records of time worked by non-exempt employees. A number of recent FLSA collective action claims have been based on allegations that the employer did not pay employees for scheduled meal breaks when the employees worked through the breaks. Earlier this month, the Sixth Circuit Court of Appeals upheld dismissal of a FLSA claim because the employee failed to note the missed breaks in the employer's timekeeping system.

White v. Baptist Memorial Health Care Corp. involved a non-exempt nurse who alleged that she was not paid for missed meal breaks. The employer contended that it had no way of knowing that the employee was working through the breaks, because she did not include this time in an exceptions log used to change otherwise standard mealtime deductions from hours worked. The plaintiff claimed that early in her employment she had used the log, but had not been paid for the missed time. She alleged that she complained about this practice in employee surveys, but never mentioned this to her supervisors. She stopped using the exceptions log when she was not paid for the time.

In a 2-1 decision, the Sixth Circuit determined that the employer had no way of knowing that the employee was working more than standard hours. The court concluded that the employer had established reasonable procedures for employees to record additional working time, and that the plaintiff failed to use these procedures. The plaintiff never alleged that the employer attempted to prevent her from using the exceptions log.

The dissenting judge believed that the employer had actual knowledge of the additional time worked because the employee initially recorded it on the exceptions log, yet was never paid. Once the log procedure proved worthless, the employee was either impliedly pressured not to report the time, or concluded that it was not effective.

Employers should make certain that non-exempt employees are clearly trained in timekeeping procedures, including procedures for noting time worked beyond the standard schedule. The procedures should also contain steps for employees to take if they believe that the employer is not accurately accounting for legitimate time worked. If put in place, these procedures can help shield employers from overtime claims from employees who fail to adhere to their requirements.