Help Wanted: Lunch break's generally the rule
Carrie Mason-DraffenCarrie Mason-Draffen
Mason-Draffen, a business reporter, writes a column about workplace issues.
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DEAR CARRIE: I am employed at a Fortune 500 company and work seven to 10 hours a day. We get no breaks, and we get no lunch hour. I was wondering about the legality of this situation. -- Out of Lunch
DEAR OUT: You are entitled to a lunch break. New York State labor law says that if you work more than six hours a day, you must receive at least a half-hour meal break. The company doesn't have to pay you for the time, but it has to give it to you.
As with any regulation though, the meal-break law has exceptions. An employer can legally justify not giving a lunch break to an employee if that worker is the only person on duty or the only one skilled in a certain job. Still, the company needs an employee's consent before cutting out his or her meal break. Here is what the regulations say:
"In some instances where only one person is on duty or is the only one in a specific occupation, it is customary for the employee to eat on the job without being relieved. The Department of Labor will accept these special situations . . . where the employee voluntarily consents to the arrangements. However, an uninterrupted meal period must be afforded to every employee who requests this from an employer."
It's hard to imagine those special situations arising at a Fortune 500 company. For more information call the Labor Department at 516-794-8195.
The meal break is the only break that state law mandates. So companies that give employees breaks to get coffee or put their feet up are giving workers more than state law requires.
DEAR CARRIE: I work as a doorman in Manhattan from 10 p.m. to 6 a.m., and I don't get a lunch break. Is this legal?
-- Lunch Denied
DEAR LUNCH DENIED: As I said above, if you want a lunch break, you are entitled to one, even if you are the only person on duty, which is likely to be the case in your job. Show this column to your boss, and bon appétit.
DEAR CARRIE: I was terminated from my job at a large company. My employer did not follow its own protocol, such as giving an employee a verbal warning first and then a written one before firing the person. I was accused of something I did not do, and it was neither dangerous nor illegal. It had to do with sharing information within the department. Human resources called me disloyal. I believe I was targeted because my supervisor is a harasser and I have always stood up for myself. I realize New York is an employment-at-will state, but do I have a discrimination case since the company did not follow protocol?
-- Illegal Goodbye?
DEAR ILLEGAL GOODBYE: The answer depends on what you mean by "harasser," said Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.
"If your supervisor harassed employees on the basis of their sex, race, ethnicity, sexual orientation or some other protected category and you protested the harassment," Kass said, "then you are protected against retaliation for speaking out against your supervisor's unlawful conduct."
On the other hand, if your supervisor was mean but the meanness wasn't based on some protected category, then you're out of luck, he said.
"Just being mean is not illegal, and employees who complain about supervisors who are just plain mean have no special legal protection," he said.
He said the company's failure to follow its own discipline protocol may help you prove that your employer was out to retaliate against you for speaking out against harassment.
"But unless you can show that the harassment you were protesting was unlawful harassment, that doesn't make a difference," Kass said. "Failure to follow protocol may be evidence of an ulterior motive, but it is not illegal all by itself."
For more on state regulations for meal breaks go to http://bit.ly/1aBZVYn; for more on workplace harassment outlawed under Title VII go http://1.usa.gov/1hSK0Lv.