DEAR CARRIE: I work at a day care center. We are paid for our 30-minute lunch break and are not allowed to leave the premises during that time. I understand the reasoning for the policy. It ensures that we are on site to help in case of an evacuation. But the director says the 30 minutes cannot be applied to our total work hours, even though we sometimes work through the break because of parent calls. In fact, our handbook states that the director can decide whether or not we should be paid for overtime. Is it legal to exclude working lunch time from our total hours worked for the week?
DEAR INDIGESTION: Though you have just one question, it encompasses various aspects of labor law. I’ll start with the most straightforward. When you work, that time should be accounted for in the day care’s payroll records.
“On the days that you work during your lunch, these hours should be counted toward the number of hours worked per week,” said employment attorney Sheree Donath of Donath Law in Uniondale.
Next is the issue of whether you should be paid overtime if working through lunch takes you over 40 hours a week.
If you are a teacher at a facility that meets the definition of an educational establishment, you may be exempt from overtime, Donath said. Teachers at day care centers are exempt from overtime and minimum wage if they, like teachers at elementary or secondary schools, fall into the professional-exemption category.
“If you meet this definition and your school is considered an educational establishment, then you may not be entitled to overtime,” Donath said. On the other hand, “if you are not a teacher or do not meet the requirements of the professional teacher exemption, then you may be entitled to overtime pay if you exceed 40 hours of work each workweek.”
It’s worth mentioning that an overtime rate doesn’t have to kick in simply because you surpass your customary work schedule, Donath said.
So if you are scheduled to work just 30 hours a week, and you work through your 30- minute lunch break every day, you would have worked only 32 1⁄2 hours that week and would not be entitled to overtime. If you are an hourly employee, you would have to be paid for those extra 2 1⁄2 hours but not at an overtime rate, which is 1 1⁄2 times your regular hourly rate for every hour over 40 in a workweek.
If you are an hourly employee, the company, by offering you a paid lunch hour, at least covers the time you have to talk to parents.
“Generally an employee does not need to be paid for the 30- minute lunch break you are receiving, provided that you do not perform any work during this entire period,” Donath said. “If you do perform any duties, then you are not considered relieved from duty and would have to be paid for this time.”
Lastly, if you are an hourly worker, any day care policy meant to prevent you from being paid overtime may be illegal, Donath said.
“An employer cannot just say you are not entitled to overtime if the facts of your circumstances are otherwise,” Donath said. “A handbook provision stating you are not entitled to overtime may not be valid as it may be an illegal attempt to circumvent the overtime laws.”
She recommended that you, with a copy of the company handbook in hand, consult a lawyer who could advise you based on the particulars of your situation.
“Once the facts of your situation are reviewed, you can determine the next best course of action,” she said.
Donath said you could also contact the U.S. Labor Department at 516-338-1890 or 212-264- 8185. Or try the state Labor Department at 516-794-8195 or 212- 775-3880.
If you have not been properly paid, you may be entitled to back wages and damages, she said.