FLSA and Employee Breaks: What Are They Really Entitled To?

FLSA and Employee Breaks: What Are They Really Entitled To? FEATURED FACULTY: Michael D. Haberman is Vice-President and co-founder of Omega HR Solutions, Inc. 770-973-9993 mhaberman@omegahrsolutions.com Read our blog and view our website at omegahrsolutions.com Vincent B. Lynch, Managing Partner & Shareholder, Florida Lawyer, Lynch & Robbins 800-934-5999 vlynch@floridalawyer.com

Speaker Info Michael D. Haberman is Vice-President and co-founder of Omega HR Solutions, Inc. Michael D. Haberman is Vice-President and co-founder of Omega HR Solutions, Inc., a consulting and services company offering complete human resources solutions. Mike brings over 30 years of experience in dealing with the challenges of Human Resources in the 21 st century. Mike uses his broad-based experience as a consultant, practitioner, writer, speaker and instructor in the areas of employment, interviewing, employee relations, management training, outplacement, safety, and social media to help companies solve employee problems and deal with governmental compliance in a constantly changing field. He has a BA in Psychology from the University of California, Riverside; a Master's of Science in Industrial Relations from Georgia State University's Beebe Institute of Personnel and Employment Relations and is certified as a Senior Professional of Human Resources (SPHR). He has over 13 years experience in the class room teaching human resources fundamentals and certification preparation. Mike is the author of the Human Resources blog entitled HR Observations, which as been recognized several times as a Top 25 in human resources related blogs. It was also been named as one of the Top 50 HR blogs to Watch in 2010. He has been selected as one of six HR bloggers to be featured on the online version of Human Resources Executive Magazine. He has also been named in the Top 10 Digital Influencers in Human Resources. He blogs on the Toolbox for HR website and contributes to several other web-based newsletter and blog sites. Mike has gained a reputation as a compliance expert. He speaks on a variety of subjects to business associations and business based civic clubs. He has authored several book reviews of both non-fiction and fiction and serves as a peer reviewer for SHRM. His clients include a broad spectrum of industries, including food, travel, textiles, medical, financial and construction. Vincent B. Lynch, Managing Partner & Shareholder, Florida Lawyer, Lynch & Robbins Vincent B. Lynch practices complex civil litigation including class action defense in Federal and State Courts, before Federal and State Administrative Agencies and in Arbitration Forums. Mr. Lynch's experience is broad including disputes involving commercial litigation, intellectual property law (Patent, Trademark, Copyright, domain names and trade secrets), product liability law, corporations and partnerships, Franchise Law and employment law (FLSA, ADA, Title VII,

and the Florida Civil Rights Act). Mr. Lynch actively defends companies against, and publishes articles on, high volume lawsuits popular among Plaintiffs' law firms such as Morgan and Morgan under the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), and Federal and Florida Fair Debt Collection Practices Acts. Mr. Lynch is currently participating in the Member Attorney Program of the Association of Credit and Collection Professionals also known as ACA International. Mr. Lynch has over 18 years of legal experience. He began his career serving 2 year terms as a Florida State Court Law Clerk (Fourth Judicial Circuit Court) and Federal Court Law Clerk (United States District Court for the Middle District of Florida, Tampa Division for the Honorable Henry Lee Adams, JR.). Mr. Lynch is a member of the Florida Bar. He is a 1991 graduate of the University of Florida Levin College of Law and a 1988 graduate of the University of Florida College of Journalism and Communications. In law school, Mr. Lynch received the coveted American Jurisprudence "Book Award" in Constitutional Law under Professor Fletcher Baldwin. Mr. Lynch is the the author of "Antitrust Guidelines for Collaboration among Competitors" published by the American Bar Association.

**Certificates of attendance and CEUs, when available, must be requested through the online evaluation.** Evaluation for Live Event: We d like to hear what you thought about the audio conference. Please take a moment to fill in the survey located here: http://www.c4cm.com/handouts/flsa-and-employee-breaks.htm Requests for continuing education credits and certificates of attendance must be submitted within 10 days of the live event. Evaluation for CD Recording: Please use the following link to submit your evaluation of the recorded event: http://www.c4cm.com/handouts/cdeval.htm Please note: All links are case sensitive HRCI - Receive 1.25 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org. "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute s criteria to be pre-approved for recertification credit."

Center for Competitive Management Audio Conference FLSA Discussion Guest Speakers Vincent B. Lynch Managing Partner Lynch & Robbins 2639 Dr. MLK Jr. Street N St. Petersburg, FL 33704 www.floridalawyer.com 800 934 5999 866 894 5239 fax Michael D. Haberman, SPHR V.P., Director of HR Services Omega HR Solutions, Inc. 4180 Providence Road, Ste 210 Marietta, GA 30062 www.omegahrsolutions.com 770 973 99939993 ext. 246 770 973 99959995 fax 678 361 8683 mobile FLSA Brief Overview The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. 1

FLSA Coverage: Enterprises engaged in "Interstate Commerce" All employees of certain enterprises are covered by the FLSA whose: Annual gross volume of sales is $500,000 +; or Is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or Is an activity of a public agency. Individual employee at issue is personally engaged in interstate commerce or in the production of goods for interstate commerce (Example: work in communications or transportation; regularly use the mails, telephones, or telegraph for interstate communication etc.) Exemptions: Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), Outside sales employees, and employees in certain ti computer related occupations (as defined in DOL regulations); Employees of certain seasonal amusement or recreational establishments, Employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, Employees engaged in newspaper delivery; Farm workers employed by anyone who used no more than 500 man days of farm labor in any calendar quarter of the preceding calendar year; Casual babysitters and persons employed as companions to the elderly or infirm. 2

Compensable Hours: Hours worked ordinarily include all the time during which an employee is required to be on the employer s premises, on duty, or at a prescribed workplace. Mandatory Breaks: Federal law does not require meal or rest breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours. As a general rule, rest breaks are considered hours worked and bona fide meal periods are not considered hours worked. Unauthorized extensions of authorized work breaks are not counted as hours worked when the employer has: (1) expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time; (2) that any extension of the break is contrary tothe the employer's rules; (3)and anyextension of the break will be punished. Breastfeeding: On March 23, 2010 the FLSA was amended to require unpaid breaks and space for breastfeeding. 3

State Laws that require breaks: About half the states require a meal break 8 Stateshave rest periods requirements: California, Colorado, Kentucky, Minnesota, Nevada, Oregon, Vermont, Washington Example: New York: Meal break required if employee works more than 6 hours : Factory and manufacturing employers must give their employees 60 minutes for a noontime meal between 11 a.m. and 2 p.m. Mercantile establishments (generally places where merchandise is offered for sale) and all other non factory employers must provide employees with 30 minutes for a noontime meal. Again, this noontime meal period must be given between 11 a.m. and 2 p.m. Excludes white collar employees. Bona Fide Meal Period Not required by FLSA A bona fide meal period is defined as: Anauthorized period of time, during the workday, when an employee is completely free from duties. If a meal period is given, supervisors are responsible for ensuring that nonexempt employees are provided a bona fide meal period of 30 minutes or more. If a nonexempt employee is not provided a meal period in which they are completely free from duties, then the time must be considered time worked. For example, if a secretary is scheduled for a 30 minute meal period but is asked by his or her supervisor to answer the phones while he or she eats lunch at his or her desk, the secretary is not completely free from work duties. The result is that the employee has not been provided a bona fide meal under the criteria of the Fair Labor Standards Act and therefore must be paid for time worked. 4

Other Breaks: If allowed, must be paid Smoking breaks, coffee breaks, religious breaks, health breaks, restroom breaks, and rest periods which could cause a myriad of gotchas. Have a clear break policy. Monitoring/Recordkeeping: Employers may use any timekeeping method they choose. For example, they may use a time clock, have a timekeeper keep track of employee's work hours, or tell their workers to write their own times on the records. Any timekeeping plan is acceptable as long as it is complete and accurate. In the current world of employment litigation most attorneys advise that you have employees clock out and back in every time a break is taken. This can be done through a computer system or through a punch clock. If neither of these are available writing actual time on the time sheet is a good alternative. Another component of this is supervisory/managerial awareness. Supervisors and managers must be trained to understand the law and the ramifications for not paying attention to the law. They ultimately have the responsibility for proper compliance. 5

What fully relieved of duty means when it comes to breaks and why it matters According to the USDOL The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. Eating at your desk at lunch and answering email is not fully relieved of duty. Nor is answering the phone, answering work related questions, etc. Without being fully relieved of duty the time worked becomes compensable and at the end of the week can add up to overtime pay being owed. Automatic Meal Period Deductions: A common mistake stems from employers use of automatic meal deductions. Many automated timekeeping systems allow employers to deductmeal periods from employees reported hours. Sucha deductionis is not an FLSA violation if the employee actually takes a meal period that matches the deduction. The deduction becomes a potential violation, however, when the employee fails to take the break. This may occur because the employee failed to report the missed break or the employer has adopted a use it or lose it approach. If the actual meal period taken is too short (ordinarily 30 minutes is required), the entire period may be considered d compensable working time. 6

How exempt and non exempt employee break time issues differ Breaks for exempt employees are a matter of good employee relations. lti It is not a matter of compensation. Breaks for non exempt employees are a matter of compensation. Non exempt employees may NOT waive overtime. Thus, if working without breaks or meals results in overtime they employee cannot say That s ok. The time must be paid. If overtime pay is an issue, then break and meal times must be controlled by supervisory or managerial oversight. How to calculate hours worked with breaks in mind Where a regular rest period of known duration is longer than 20 minutes waiting time rules apply. That means if the employee is free to go where they please, and the rest period is long enough to allow them to use it for their own purposes then it is not considered compensable. Unauthorized extensions of breaks are not compensable if the employer has expressly and unambiguously communicated: The authorized break can only be a certain length of time Any extension of the break violates the rules; Any extension of such a break will be punished. 7

How to handle breaks when an employee works through them Having an hours worked policy is critically important. You need to define the following: The length of the day with the start and end time. If breaks are to be given (subject both to state law and to good employee relations) how long the breaks are to be and when they may be taken. (Typically breaks are not taken at the beginning or end of the work shift.) How overtime is to be handled. Does it need prior approval? Consequences for skipping a break without permission. Include a statement of what happens if management requests a nonexempt employee work without a break. How that break/meal time is to be recorded. Steps to Avoid Problems: Have a well publicized policy regarding breaks. Train all managers andemployees andincludethis material in orientation. Require employees and their managers to review and certify their time entries. Review all the automated assumptions in your time system. Have a stated procedure for reporting payroll errors. Periodically auditandnotethe and note the reasons for changes. Provide period reminders and stress accountability. 8

Resources andlinks: www.dol.gov www.flsadefense.com Questions 9

C4CM Upcoming Events For more Human Resources, visit: http://www.c4cm.com/hr/audioconferences.htm For more Human Resources CD Recording, visit: ii http://www.c4cm.com/hr/recordings.htm 10