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BusinessColumnistsCarrie Mason-Draffen

Help Wanted: Lunch break change not forced by new law

Whether an employer is required to pay an

Whether an employer is required to pay an employee at all for unused time depends on the company's paid-time off policy. Photo Credit: iStock

DEAR CARRIE: My daughter is a part-time bank employee. She works two five-hour days and two 6.5-hour days. On the five-hour days, she used to get no lunch break. She didn't mind because she was done after five hours. Now she has just been informed that she must take a half-hour lunch break all four days. Supposedly this change came about because of a new law. But I think the bank is just doing it to have her work a half-hour later for business reasons. As far as I know, the current state law requires a meal break for shifts that are at least six hours long. Am I right? -- Lunch Puzzle

DEAR LUNCH: You're right to question the bank's intention. State meal break regulations haven't changed in years. And under those regulations employees are entitled to a meal break when they work more than six consecutive hours a day. So the bank has opted to give her more than the law requires, with a meal break in a five-hour shift. But at the same time that she gets a lunch break, which lengthens her day, the bank also gets a half-hour of additional coverage.


DEAR CARRIE: I have a question regarding paid time off. Is it legal for a company to refuse to pay employees cash for unused paid time off after refusing the employees' requests to use said days? The company refuses to pay cash because the employees earn "over a certain salary." -- Questionable Rule

DEAR QUESTIONABLE: Generally, the universe of paid time off is one in which employers rule, because they can decide whether to offer benefits and can set the terms for using the benefits.

"Where a company elects to have a vacation policy, as most companies do, the company is free to impose any conditions it chooses," said employment attorney Jeffrey M. Schlossberg of Jackson Lewis P.C. in Melville.

So whether an employer is required to pay an employee at all for unused time depends on the company's paid-time-off policy.

"The policy can include a provision for forfeiture of unused vacation time, provided the policy is in writing and distributed to the employees," said Schlossberg, who represents employers.

As for a policy ruling out cash payments for unused time, he didn't see a problem with that.

"I have never heard of a policy that states an employee cannot be paid for unused vacation due to the level of the employee's salary," he said. "However, it does not appear to be unlawful."

So the moral of the story is to make sure you find a way to use your paid time off and to be flexible about the dates, if necessary.


DEAR CARRIE: I work for a local bus company. My bosses contend that because I am salaried and earn more than $455 a week I am not entitled to overtime. But I don't supervise anyone, and I have no authority to hire, fire or discipline anyone. I have spoken to a lot of friends, and this questionable classification doesn't seem to be an isolated practice. Whom do we talk to? I feel this is an illegal labor action going on in a lot of places. My employer threatened to fire anyone who goes to the Labor Board. -- OT TKO

DEAR OT: What planet do your bosses live on? Salary alone doesn't determine whether someone is exempt from overtime. A worker's duties are the key ingredients, some of which you mentioned. A manager, for example, has to manage at least two full-time people, and most of his or her duties must consist of managing. In addition in New York, most exempt employees have to earn at least $600 a week, not $455, which is the federal minimum amount.

So your bosses are batting 0 for 2 in trying to justify not paying you overtime, which kicks in after 40 hours in a workweek.

For more information, call the U.S. Labor Department at 516-338-1890.

For more on overtime eligibility under federal laws go to

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