Relieving employee of duties during meal break?

StephanieHR

Hi all!
Just signed up for this forum.
I've got an issue that I thought someone might be able to help me out with.

Our Corporate Office and one of our branches are located in the same building.
Our normal working hours for the people in the office are 8a.m. - 5p.m., with a one hour unpaid lunch break. The clerical person at the branch marks her time ticket as In-8a.m. Out-12noon In-1p.m. Out-5p.m. So, she gets paid for 8 hours a day. But while on lunch break from 12noon - 1p.m., sometimes she has to wind up answering the phone if it rings, answering the door if someone comes in, etc. A lot of the time, there is nobody around in the branch that can cover for her while she's on break (we're a vending company and a lot of the time the manager & the service supervisor are visiting accounts or filling in on routes, our technicians are on service calls, and of course the route drivers aren't around anyway, they're servicing the accounts)and those of us on the corporate office side of the building are not permitted over on their side, as we are two separate "locations". I've been trying to make the bosses realize that even though she marks 8 hours worked with the lunch break, which goes unpaid, in between, this could be a big problem--since, even though it's not mandatory to offer lunch breaks, that if we do offer them and we want the break to be unpaid, the employee must be relieved of all their duties for the duration of the break.

Anybody have any info. on this for me...is this correct...maybe help lead me in the right direction??
Thanks!!
Stephanie

LindaS

As I understand the FLSA, an employee must be paid for all hours worked. If the employee is not able to leave their workstation and/or may be required to perform their job duties during their lunch, they must be paid. Even if the employee is not marking it on her timesheet, you still know, or should know, that the employee is working so you should be paying her for that hour. If you choose not to, the employee may decide at some point to file a wage claim against you and she would wind up winning.

If you are unable to completely relieve her from her job for more than 20 minutes, pay her and be done with it. The possible ramifications of not doing it far outweigh the cost for just paying her correctly now.

Rockie

She needs to be totally relieved of duties during the lunch break in order for it to be unpaid. Even sitting at the desk eating and answering the phone is considered "work". The DOL is very strict about this.

Margaret Morford

Stephanie,

You are exactly right and the advice given above is excellent. Maybe we need to give you some ammo to take back to the executives so they will address this. If Wage and Hour audits this situation, they will sit down with this woman and explain to her that she should have been paid for this time. They will then ask her how often she had to interupt her lucnh to perform work. Wage and Hour will probably decide that she was working the whole hour because she was always available. They will then multiply five hours per week times her hourly rate at the overtime rate, times 50 weeks per year, times two years(because they go back two years on a regular violation, three years on a willful violation). Assuming she made $8.00 per hour, she would suddenly be due $6,000. Do the math and present it to them.

Hope that helps you get their attention.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Nat

Stehpanie, we have a similar problem where I work that I have to address constantly. I constantly remind the people that they need to take their lunch with uninterupted time. A couple of suggestions that might help: 1. Let her leave early on the days that she must work during her lunch; 2. Let someone in another department, such as HR answer the phones while she takes her lunch. I offer for me or my staff to help answer the phones during breaks if there is no one else who can. May not work in your setting but it's a suggestion. I agree with Margaret's post that you should put some dollar figures in front of the powers that be. Talking to their pocket book might get their attention. Good luck. $$$

neveradull

Not being a legal expert my bet is that now that you have made the powers that be aware you a looking at a willful act subject to the three years plus penalties.