Help Wanted: Legality of break on premises

If the boss declares that unpaid lunch breaks

If the boss declares that unpaid lunch breaks must be taken at the job site, the law supports the rule. However, the company must make sure that workers are free from work for that period. (Credit: Fotolia)

Carrie Mason-Draffen

Newsday columnist Carrie Mason Draffen Carrie Mason-Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

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DEAR CARRIE: I work for a major airline. All part-time and full-time employees get a 30-minute unpaid break. Just recently local managers decided that we can't leave the building during our break. They said the company would be liable if something happened. Although none of us have injured ourselves on a break, management believes the new rule requiring us to remain in the building will prevent mishaps. Neither company policy nor our union contract addresses this issue. Do labor laws allow a company to dictate where employees go on an unpaid break? -- Shut In Legally?

DEAR SHUT-IN: Federal labor law permits such a policy, said employment lawyer Michael J. Borrelli, of Borrelli & Associates in Great Neck. He noted Section 29, Part 785.19 (b) of the Code of Federal Regulations:

"It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period."

It's worth mentioning that federal law doesn't require any breaks, not even meal breaks, which are usually 30 minutes. But if companies offer such unpaid breaks, their key obligation under federal law is to make sure that hourly employees are freed from work during that time, as the statute above emphasizes. Hourly workers must be paid for all the time they work.

"If it is a bona fide meal break, it may be unpaid, and the employees need only be fully relieved from their duties for the purpose of eating their meal," Borrelli said.

Despite a New York State law that requires at least a half-hour meal period when employees work more than six hours a day, you won't get relief from state regulations regarding the on-premise issue. Sometimes state statutes grant employees more rights than federal laws, but not in this case, according to Borrelli.

"New York State has not squarely answered the question of whether or not an employee can be forced to remain on premises during their break," he said. "In situations where there is no clear declaration under state law, [federal labor law] and how it has been interpreted by the courts will be the controlling authority, and it is no different here."

Collective bargaining agreements are often the last bastion for worker protections not provided by state or federal labor laws. But again you are out of luck, because as you noted, your union contract doesn't address the issue. Your only option is to appeal to the company again for freedom to venture out.

For more on meal breaks click here to go to the online U.S. Government Publishing Office at  bit.ly/wIWtqb and here to research the issue on the New York Labor Department website at bit.ly/zfq8EO.


Update on "Dated Checks,  a column question that appeared two weeks ago. The reader who tried for more than a year to get her company to replace three payroll checks she had forgotten in a book called last week to say that she finally got her payday. When she discovered the checks from her part-time job, she couldn't cash them because they were five years old. So she asked her company to replace them. The company took the old checks totaling $1,200 but didn't issue her new ones. Meanwhile, the state Labor Department said she was entitled to the money. She told her manager she had spoken to Newsday's Help Wanted columnist. She received new checks soon after.