The Massachusetts Division of Administrative Law Appeals (DALA) handed a win to a retailer that was cited for violations of the state’s meal break law, ruling that the statute does not grant civil enforcement authority to the Attorney General’s Fair Labor Division (FLD).

The Fair Labor Division had issued two citations for a total monetary penalty of more than $1.5 million under the meal break law (M.G.L. c. 149, § 100), which requires employers to give a thirty-minute meal break to employees working more than six hours in a day.

The FLD conducted an audit of the retailer’s timekeeping records over a nine-month period in 2018 and 2019 and issued the two citations: one in the amount of $993,600 for 2,208 violations (at $450 per violation) in which the store’s assistant managers and managers had not punched out for a meal break; and  the second in the amount of $508,200 for 1,694 instances (at $300 per violation) in which the employees had punched out for a meal break but were the only management employees at the store during that time.  Note that each day on which an employee did not get a meal break is a distinct violation.

The penalties were appealed by the retailer to DALA, an independent agency that provides a neutral forum in which to appeal decisions of state agencies. The facts were not in question at this proceeding, although the retailer contends that the employees were given the meal breaks to which they were entitled.  Rather, the retailer challenged the FLD’s authority to issue civil citations rather than pursue criminal prosecution.  The appeal turned on the interpretation of the first sentence of M.G.L. c. 149, § 78A(a), under which the citations were brought, which reads as follows:

As an alternative to initiating criminal proceedings to enforce any violation of sections 56 to 105, inclusive, or a violation of this chapter for improperly employing a minor for which a criminal penalty is provided, the attorney general may, at his discretion, issue a written warning or a civil citation to the person responsible for the violation. 

The retailer successfully argued that the phrase “for improperly employing a minor” applied to the preceding clause, meaning that civil citations can only be issued for violations involving employment of minors.  All the affected employees of the retailers were adults.  Therefore, civil enforcement was not an option for enforcement of the meal break law in this case.

The DALA judge found that the sentence was ambiguous, and therefore looked to rules of statutory interpretation, which did not resolve the conflict.  Other factors, however, pointed to the conclusion that civil enforcement was available only when the employment of minors was involved.  The sentence immediately following, for example, says that “[t]he citation . . . may impose, for each instance in which a minor is required or permitted to work in violation of sections 56 to 105 . . .” This sentence more clearly limits civil enforcement to the employment of minors.

The referenced sections 56 to 105 of chapter 149 all relate to child labor except for two: §100, the meal break law, and §103, which requires the availability of seating for employees.  The DALA judge reviewed the legislative history of these provisions, finding that they were originally enacted for the benefit of women and children. The meal break requirement was only extended to adult men in 1974.

While the retailer prevailed in this instance, the case may have resulted in criminal liability had the FLD sought to prosecute. Wage claims have a three-year statute of limitations, however, so it is possible that prosecution is no longer an option in this case.

Employers must ensure that all employees who work more than six hours in a day are allowed to take at least a thirty-minute meal break, during which they are free of all responsibilities.   And employers must ensure that their recordkeeping reflects that meal breaks are provided, regardless of whether they are paid or unpaid.

AIM members with questions about meal breaks or any other human-recourse matters may call the AIM HR Helpline at 800-470-6277.