Wisconsin Employers Can Insist Upon Unpaid Lunch Breaks, Seventh Circuit Rules

The U.S. Court of Appeals for the Seventh Circuit recently ruled that Wisconsin wage and hours laws concerning the compensability of meal periods empower employers to require that such breaks be unpaid.  In Wirth v. RLJ Dental,1 the court focused on whether the employer provided a qualifying meal break in the first instance, not on whether employees decided to work during that time.

Under Wisconsin law, bona fide meal periods are not considered work time, and therefore, are not compensable for non-exempt employees.2  But there are some stringent requirements that must be met for the meal period to be considered “bona fide.”  First, the meal period must actually be a meal period, as opposed to a rest break, a coffee break, or a time for snacks.3  Second, the meal period must be 30 minutes or more.  Third, during that time, the employee must be completely relieved from duty for the purposes of eating regular meals and must be permitted to leave the employer’s premises.  If the employee is required to perform any duties while eating, whether active or inactive, then they are not considered completely relieved from duty.  For example, an office employee who is required to eat at their desk or a factory worker who is required to be at their machine is not considered completely relieved from duty. 

These laws incentivize Wisconsin employers to provide employees with duty-free meal periods that are at least 30 minutes long.  However, employees have frequently argued in litigation that the Wisconsin administrative code requires employers to compensate them for an entire meal period—including portions that they are not clocked in or working—if they voluntarily elect to take a meal period shorter than 30 minutes.  

The Seventh Circuit rejected that interpretation of the law in Wirth. The employer (a dental service organization) provided the employee (an office manager) an hour-long lunch break.  During that time, the employer closed its offices and did not schedule any patients.  Although the employee was not required to work and was free to leave the office, she frequently clocked out for less than 30 minutes.  The employer admonished her not to clock in or work during that time, but she continued to do so anyway.  The employer paid her for the time she was clocked in, but the employer did not pay her for the time she was clocked out.   

The employee filed suit arguing that if an employee elects to take any break of less than 30 minutes, then the entire break period offered by the employer (here, an hour-long lunch break) must be compensated.  In other words, because she decided to shorten her meal periods to less than 30 minutes, the employee claimed she was entitled to be paid not just for the portion of her lunch break during which she was clocked in, but also for the time she was clocked out and admittedly not working. 

The court held that the proper inquiry must focus not on the employee’s choice to clock in early, but rather on what the employer provided, which was an hour-long meal period that met all the requirements to be non-compensable (i.e., the meal periods were 30 minutes or longer, and she was completely relieved from duty).  Because the employer provided 30 minutes or more during which the employee was completely relieved from duty for the purposes of eating lunch, the employer was not obligated under the law to pay her for the time she was off the clock and not working.

The Wirth decision protects Wisconsin employers from wage liability to employees who voluntarily decide to take shorter meal periods than what the employer provides.4  Employers that wish to provide employees with uncompensated meal periods must take care, however, to ensure that the meal periods they provide are at least 30 minutes long and that employees are completely relieved of duties and permitted to leave the employer’s premises during those times.   

See Footnotes

1 Wirth v. RLJ Dental, Appeal No. 22-2122 (7th Cir. Jan. 31, 2023).

2 Wis. Admin. Code DWD 272.12(2)(c)2; see also Wis. Admin. Code DWD 272.04(1)(c).

3 Wisconsin law distinguishes between “meal periods” and “rest periods.”  See Wis. Admin. Code DWD 272.12(2)(c).  Rest periods of short duration, running less than 30 minutes are always compensable.  Wis. Admin. Code DWD 272.12(2)(c)1.  Coffee breaks and time for snacks are not considered meal periods.  Wis. Admin. Code DWD 272.12(2)(c)2.   

4 Because Wirth is a decision from a federal court, it is not necessarily binding on Wisconsin agencies and courts.  As of now, however, it is the only reported decision on this issue.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.