Can an employer provide food to an employee rather than overtime pay. A recent case says “no” and that, in most situations, food cannot be a substitute for money wages. In Newson v. Carolina Logistic Services, the Mississippi Federal Court determined that an employee entitled to overtime wages despite his employer’s arguments that he had been paid for his after-hours overtime work with food. Mr. Newson, an employee, made an agreement with one of his managers that he would clean the employer’s warehouse after his regular work hours in exchange for a daily “banana box” of food. This arrangement went on for a number of years until new management took Carolina Logistic Services (“Carolina”) over. When Newson was terminated he sued Carolina, arguing that he and a co-worker were entitled to overtime wages for the work they performed cleaning the warehouse after their regular work hours. In response, Carolina argued in part, that it did not owe money because it had paid both Plaintiffs with the agreed upon box of food. The Court disagreed with the employer and determined that Plaintiffs were owed overtime wages under the Fair Labor Standards Act (“FLSA”), the law governing employee pay in this instance. In so determining, the Court first noted that the FLSA does not explicitly include food or a similar term in its definition of “wage” and therefore, the employer would have to have some other basis for arguing that boxes of food constituted a wage. Second, the Court noted that “board, lodging, or other facilities” are only considered wages when they are “customarily furnished” by an employer to employees. Because Carolina had not made an argument regarding whether boxes of food were “customarily furnished” to its employees in exchange for their cleaning services, the Court found that the Plaintiffs were entitled to overtime wages. What does this mean for you? You are entitled to get overtime in money wages and not food, unless if your employer can establish that the provided food is “customarily furnished” to employees in exchange services. Such circumstances should be rare.
