The success of a legal challenge involving a Missouri nursing home looks to hinge on whether a federal appeals court believes that employee statements other courts have ruled against count as proof that workers were not paid for interrupted meal breaks since the facility’s timesheet records are missing.
The US Department of Labor challenged an October ruling from the US District Court for the Eastern District of Missouri that determined that Levering Regional Health Care Center and Reliant Care Management Co. LLC did not violate the Fair Labor Standards Act over an unwritten policy regarding meal-time breaks. A Labor Department audit of payroll records from Feb. 13, 2018, to Feb. 12, 2020, plus interviews with 46 nursing staff employees and managers found that staff frequently worked through meal breaks or did not get a break at all.
Before 2018, Levering’s payroll system automatically deducted a 30-minute, unpaid meal period for employees working shifts of six or more hours. The company’s unwritten rule was to have employees use a supplemental timesheet that required a supervisor’s signature when that meal period was disrupted, according to information in the October 2023 ruling from US District Judge Henry Edward Autrey. The supplemental sheets were kept near the employee time clock.
But all of those records went missing — a point on which the Department of Labor and Levering agree.
Levering attorney Andy Martone told the three-judge panel for the Eighth Circuit Court of Appeals on Tuesday that the company’s HR director left during the pandemic and the records could not be located. Regardless, he said the Labor Department’s insistence that Levering had not properly paid employees was wrong.
“Despite interviewing 46 employees and years of discovery, the Secretary could not produce a single scintilla of evidence that a single employee of Levering worked through their lunch period without being properly paid for it,” Martone said.
He further told the judges that general statements from employees such as, “Nurses never get lunches” or breaks were “interrupted probably every day” are too general to meet a burden of proof.
The appeals judges pressed Martone on the records, suggesting that a surge of 833 supplemental timesheets after the audit ended sufficiently proves that the company’s unwritten policy wasn’t clear or fully explained to employees.
Martone pushed back, explaining that the policy is discussed during employee orientation and was otherwise known throughout the facility. Of the 46 employees interviewed by the Department of Labor, 27 were not asked about the policy while just five of the 19 who were said they had no knowledge of it, Martone said. He also cautioned that the panel should not compare operating procedures before and during the pandemic given the upheaval and staffing crisis the nursing home experienced.
“There was no evidence that [supplemental timesheets] weren’t turned in,” he said. “We were unable to locate the records. That doesn’t prove there were no records. We simply couldn’t locate them.”
One judge on the panel called it “suspicious” that supplemental timesheets “all of a sudden … showed up” after the Department of Labor audit wrapped up.
The Department of Labor, which appealed Autrey’s ruling, told the judicial panel that the employees interviewed never mentioned the pandemic causing a disruption to policies — written or otherwise. The department’s lawyer said there is a “clear linkage” to nursing staff’s meal times being disrupted, as discussed in the interviews, and staff not being properly compensated.
