Various questions and answers about the work (Part 2)

We take our employees to lunch for their reviews — do we have to pay them, too? 

When an employee is taken to lunch, and given their scheduled review, is this considered their lunch break (unpaid) or should they receive an additional break that day and be paid for the time during the review?

Rita Risser responds:

Assuming the employee is an hourly employee, the employee is entitled to be paid for “hours worked” which is defined as any time that is under the direction and control of the employer. So you do have to pay for this time. And if, as a result of working through lunch the employee works more than 8 hours that day, you must pay overtime. The employee also is entitled (under California law) to a half-hour meal break. However, the penalty for not giving the break is paying for the time, so I don’t think you have to give an additional break.

From a management point of view, I think this is a questionable practice. Unless the review is perfect, the employee is probably going to get indigestion! I suggest that you give reviews at the office, and independent of that, maybe to celebrate the review, you have lunch together. If you make the lunch completely voluntary, you do not have to pay for the time. With my hourly employees, I occasionally have taken them to lunch, told them it was voluntary, and then waited to see what they put on their time cards. The good employees never put that time on their cards, the poor employees always did! I paid the ones that asked for it.

 


Can hourly employee skip lunch to leave early?
Can a non-exempt employee take their lunch period at the end of a day in order to leave early with their supervisor’s permission?

Rita Risser’s response:

Doesn’t it seem like this is a perfectly reasonable request? Unfortunately, in some states, like California, it is illegal for an employer to allow an employee to do this, even at the employee’s request! The state wants employees to take lunch breaks, and neither employees nor employers can change that. They can only agree to waive the lunch if the employee works for 6 hours or less a day, and various other legal requirements are met.

U. S. law does not require employees to have lunch breaks. If you are in one of the states that does not have its own law, you would be allowed to skip lunch to leave early.

Check to see if your state has a Labor Commission or Wage and Hour Division responsible for handling these issues.


Can exempt employees be forced to take lunch breaks?

I am in California. Can you tell me the law regarding lunch breaks?
I was told that an employee is required to take a half an hour unpaid break after six hours. Is this true for exempt employees? Can an employee work eight hours straight in order to go home an hour earlier than an employee that takes an hour (unpaid) lunch break at noon?

Rita Risser’s response:

Let’s be clear we are talking about California law and exempt (salaried) employees. Exempt employees are exempt from the privileges of the law, including breaks, lunch and overtime. This means that you don’t have to take lunch; conversely, your employer technically could refuse to give you a lunch break.

Theoretically, your employer should not be keeping track of who works how long among the exempts. Ideally, you are getting your job done, whether it takes 30 hours or 60.

There is another potential issue here, however. If the employer wants exempt employees to be present during the core hours of the day (which could be defined as 8 to 5 or 7:30 to 4:30 or whatever) the employer could insist that even if you don’t take a lunch break, you still must remain at work. Even if this means you are working nine hours a day, you are not entitled to overtime.

As a practical matter, the reason the Legislature in its infinite wisdom, granted lunch breaks was due to the recognition that people work better, feel better and remain healthier longer when they take task breaks throughout the day. Taking a break could be the best use of your time.


Do we have to give meal breaks?

I know this is one of the basics, but I can’t find a written answer. Do I have to give my employees a meal break over an eight hour shift? They seem to think so, but sometimes the work needs to get done.
Thank you.

Rita Risser’s Response:

Federal law does not require meal or other breaks. However, employees have to be paid for all hours worked. So if they work through lunch and have a regularly scheduled eight hour day, you must pay overtime (time and a half) for the extra time worked that day. California law does require a half-hour meal period.

This is one of those situations where the law sets a low standard, but you don’t have to. It’s hard enough working eight hours a day without getting a break. Sure the work needs to be done, but no one can work hour after hour, day after day, without a break. I think it’s in your long-term best interest to give people breaks and still get the work done. Good luck!


Are salaried employees required to get breaks?

My question is if I am a salaried employee who works 8:00 A.M. till 5:00 P.M. Monday through Friday. (usually 7:45 to about 6:00), am I entitled to two breaks other than an hour break at noon (unpaid). For example a 15 minute break in the morning and a 15 minute break in the afternoon. The opinion here in management is that if you are salaried they are not legally obligated to give those breaks. Please let me know if I am entitled to those breaks as they are sometimes really needed.

Rita Risser’s response:

Federal law (the Fair Labor Standards Act, or FLSA) does not require employers to provide any rest breaks or meal periods! California law requires a half-hour meal period and two, 10-minute breaks, but only for hourly (non-exempt) employees. Other states laws may be more generous. Check with your local Labor Commission. Otherwise, you are at the mercy of your employer.


Do holidays count for overtime?

During a holiday week, does the “overtime over 40 hours” still apply or does 40 hours get reduced to 32 hours and anything over 32 hours is considered OT?

M T W T F
H 8 8 10 8 = 34 hours worked + 8 hours holiday
or = 32 hours REG + 2 hours OT + 8 hours holiday

Rita Risser’s response:

Legally, holidays do not count as “hours worked.” (Some companies have union contracts that do include holidays as hours worked, but that is a different issue.)

For example, let’s say Monday was a holiday and you then worked five days (including Saturday) 8 hours a day. You would not be entitled to any overtime for that week, because you only worked 40 hours.

In the example you gave, it would be 34 hours regular pay.


Do employees accrue vacation while on FMLA?

We have an employee who was on a medical leave due to complications from a pregnancy. She now is insisting that she was accruing vacation time while out on an unpaid leave. Our company currently does not have a written policy on this topic. It is not addressed in our Employee Handbook.

Rita Risser’s response:

Generally, employees out on Family Medical Leave are entitled only to accrue health benefits while on leave. However, you cannot discriminate against people who take FMLA leave. For example, if in the past employees out on unpaid medical or non-medical leave have accrued vacation, then this employee also must be allowed to accrue vacation.

Individual states have different laws which may give employees more rights than the FMLA. Check with a local employment lawyer to see if there are special laws in your state.


Can they force us to work holidays?

I work in an industry that for part of the year requires long hours.

Unfortunately, these long hours are usually during the holiday season. This year for Thanksgiving we are allowed to take a vacation day for the day after Thanksgiving and then required to work on Saturday. Can they really do this? Also, later in the season we have scheduled work hours during the weekend to take support calls along with our regular 40 hour work week. Is the company required to give us comp days for these extra hours since they are scheduled and we have no choice but to work them?

Rita Risser’s Response:

An employer can have any holiday plan it wants, or no holidays at all. If the employer promises to give you comp time for holidays worked, double-time for those days, or promises to make some other arrangements, then they have to do what they promised. But they don’t have to promise you anything at all. From a legal perspective, if you don’t like it, you have the right to quit.


 

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