Can an employer allow employees to work through lunch to leave early?
DEAR CARRIE: I am a small business owner with three employees. They work from 8 a.m. to 3 p.m. Monday through Friday. They get a half-hour meal break. I have noticed that instead of taking their lunch break, my employees would rather work through so they can get paid for that time and leave early. So they eat their bagels or sandwiches at their desks. I don’t know if it is legal for them to skip their meal break, even though they are paid when they work through it. Can you help me? — No Lunch Bunch
DEAR NO: You are right to be concerned, even though you are complying with the law by paying them for the working lunch. But a lawyer who represents employers advises against it as a regular practice.
"While allowing employees to work through lunch occasionally in exchange for leaving early is acceptable, it is not something that the [state Labor Department] will permit on a long-term basis in lieu of employees taking a bona fide meal break," said employment attorney Howard Wexler, a partner at Seyfarth Shaw in Manhattan. “This does not mean that an employer and employee cannot agree that the employee may work through a meal period in exchange for being able to leave work early on an occasional basis due to employee needs. However, the employer and employee cannot agree to such a situation on a long-term, regular basis."
Here's some general background from state regulations that Wexler provided:
Under state law, non-factory workers are entitled to a 30-minute lunch break between 11:00 a.m. and 2:00 p.m. for shifts of more than six hours that extend over that period. Employees must be completely relieved from duty during the meal periods, and an employee is not relieved if he or she is required to perform any duties.
"Given the work shifts of these employees, they all appear to be entitled to a 30-minute, unpaid break," he said. "While employees may remain at their desk or in their work area during a meal break, they must be effectively relieved of their duties during that period. In general, employees who are required to remain at their desk or workstation during meal periods are not considered to be completely relieved of their duties."
So what would he advise employers in your situation?
"I would advise the client that because they are paying the employees for the time that they are working through lunch, they are minimizing potential exposure," he said. "However, they are nonetheless failing to comply with the NY labor law’s rest break requirement; so they still face some risk of exposure, even if it is just in the form of civil penalties/fines."
It looks like you'll have to break the bad news about lunch breaks to your employees. Maybe showing them the column will help.
DEAR READERS: Last's week column, which also focused on lunch breaks, drew several responses. That column dealt with the legality of a credit union/bank requiring its employees to remain on the premises during their meal break. It is legal. Here is a sample of the responses:
"I also work for a bank, and as required by New York State we are given a 30-minute, uninterrupted lunch break. This 30 minutes is unpaid, so I am a little confused about your answer to "Lunch with Rules." If this 30 minutes is unpaid, how can the company dictate how I spend that 30 minutes?"
Here is the reason from the state Labor Department's website:
"There is nothing in the labor law that requires that an employee be permitted to leave the work premises for the meal period, so long as the employee is completely freed from duties during the meal period."
Thanks to all who wrote in.
Go to bit.ly/NolunchLI for more on state law and special meal breaks.