State law mandates breaks for employees

Dear Carrie: I work long hours at a group home. I work 60 hours a week for three weeks, and during the third week I also work the entire weekend. My weekend shift consists of coming in Friday at 10 p.m. and not getting off until Monday at 10 a.m. I am the only person at the facility during my work hours and cannot get a scheduled break because I have six needy girls to look after. In addition, even though I have been full time since June, I did not start receiving my health benefits until November. I also receive no holiday pay and do not get any other paid days off. Many times I am scared to take a day off or tell the managers I cannot work when they call me in because I was once told that I am still here because I'm reliable. Are these working conditions legal? -- Seeking Respite 
Dear Seeking: You raise three issues: health-care benefits, paid time off and breaks. State labor laws can't help you with the first two, but can with the third.

Companies don't have to offer either health-care benefits or paid time off. When employers offer those benefits, the companies are free to set the terms, as long as they aren't discriminatory.

While waiting five months for your health benefits seems like an extraordinary amount of time, it's probably legal, unless the company promised you something sooner in writing.

As for breaks, a meal break is mandatory, said a state Labor Department spokeswoman. So you are entitled to an uninterrupted meal break of at least a half hour. But other breaks aren't mandatory.

The spokeswoman points out, however, that it's common for workers in your situation to take a "sleep break" during the night.

For further information, call the state Labor Department at 516-794-8195 or 212-775-3880. 

Dear Carrie: If a company gives you sick, personal and vacation paid time off, should those days count toward your 40-hour workweek? -- What Counts?
Dear What Counts: Those days don't count toward the 40-hour workweek because they don't involve actual work.

"The 40-hour standard under the Fair Labor Standards Act is a workweek standard reflecting hours worked only, not hours of pay," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department.

Your question, though simple, goes to the very heart of labor law in that it deals with the issue of what constitutes work.

Courts have clarified that definition over the years. According to Section 785.7 of the Code of Federal Regulations, one of the U.S. Supreme Court rulings says the workweek ordinarily includes "all the time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace."

That clearly would exclude your paid time off as workdays. And those days wouldn't count toward overtime hours, which kick in after 40 hours in a week. 

Dear Carrie: The small oil company I work for pays me by check. The bank the paycheck is drawn on charges me $6 to cash it. Is my employer responsible for the charges or am I? I do not have a checking or savings account at any bank. -- Heavy-Handed Fee?
Dear Heavy-Handed Fee: You could well seek some relief. While the state Labor Department spokeswoman stressed that the department would have to know your exact circumstances before rendering a decision, she said the fee raised a red flag.

"It would be wise for the employer to make some arrangements for her," she said. "It seems highly unusual that a bank that the employer uses for its payroll account would charge someone to cash a check for one of its customer's employees."

For details, call the state Labor Department at 516-794-8195 or 212-775-3880.