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Employers Beware – The Third Circuit Strictly Construes the FLSA Regulations to Prevent Taking Credit to Offset Overtime Obligations with Amounts Paid Voluntarily for Bona Fide Meal Periods

10/18/2016

The Third Circuit recently handed down a decision about which all employers should be aware – Smiley v. DuPont.  There the employer voluntarily paid for 90 minutes of unworked time for each employee on each 12-hour shift.  But the court held that the employer could not take credit for such voluntary payments to offset amounts due to the employees for their pre- and post-shift work time in changing clothes and in communicating with their coworkers about the performance of the prior shifts.  The takeaway is that there is no credit for voluntarily counting what needn’t be counted if one fails to count what must be counted. 

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