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Despite working from home, she gets no lunch break, asks if that's legal

Worker says company expects her to be on duty and available, even when there is no work to do; she also says her employer doesn't pay overtime when she works more than 40 hours a week. 

At-home workers are covered by the minimum wage

At-home workers are covered by the minimum wage law and must be compensated for overtime, according to labor law. Photo Credit: Getty Images/Eva-Katalin

DEAR CARRIE: I am one of about 15 women who work for a medical transcription company that owns and runs imaging facilities around the country.  Each of us has her own set hours such as  9 to 5 or 10 to 6.  We are paid not by the hour but by the pages we type.  And we must average at least seven pages per hour.  We receive benefits, a 401(k), holiday and vacation days, and we get a W-2 at the end of the year.  So we are bona fide employees.  

My first question: Is it legal for us to work without a lunch period?  For example, I work 9 to 5, and I have no break for lunch. And if I am entitled to a lunch break, should I be paid for that time?   

My next question concerns overtime. At times we are asked to work nights and on weekends. It is completely our choice, but we receive no extra compensation for that time. We are still paid at the same rate per page, even when we work more than 50 hours a week. Shouldn't we be paid overtime when we work more than 40 hours? 

Here's my final question:  Shouldn't we be paid for being on stand-by duty? Ocasionally our system is down, so we cannot work.  Or, at times, we have  no work to do. In both cases we have to remain punched in and waiting. But we receive no compensation for that time. Is that legal? -- Home Work

DEAR HOME:  Let's look at the lunch question first. Employees who work more than six hours a day are entitled to at least a half-hour meal break, state law says. You certainly meet that criterion, and so you should receive a lunch break. The lunch break doesn't have to be paid because hourly workers have to be paid only for the time they work. 

The state Department of Labor's website notes that the meal regulation contained in Section 162 of New York labor law "applies to every person in any establishment or occupation covered by the labor law. Accordingly, all categories of workers are covered, including white-collar management staff."

As with in any rule, there are exceptions. For example, when just one person is on duty, "it is customary for the employee to eat on the job without being relieved," the deparment's website says.  

But the employee has to agree to the arrangement.

"The Department of Labor will accept these special situations as compliance with Section 162 where the employee voluntarily consents to the arrangements," the website says. "However, an uninterrupted meal period must be afforded to every employee who requests this from an employer."

So you need to talk to your employer about giving you a much-needed meal break. 

As for your wages, even though you do piece work, as an hourly worker you still have to be paid minimum wage and overtime. The minimum wage on Long Island is $11 an hour. It will rise to $12 on Dec. 31.  And federal law says that when you work more than 40 hours a week, you have to be paid 1 1/2 times your regular hourly wage.  

Even though you are paid by the piece, your company has to compute that on an hourly basis to make sure it is following labor law.  And your employer is required to keep a record of your hours worked and your pay rate.  

Your last question concerns a concept in labor law known as "engaged to wait."  You aren't actively working, but you aren't free to leave if you want to. So you have to be paid for that wait time, federal labor law states. 

For more information call the state Labor Department at 516-794-8195 or 212-775-3880, or the U.S. Labor Department at 516-338-1890 or 212-264-8185.  

Go to bit.ly/LIatlunch for more on New York's meal break regulations. 

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