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Lunch Breaks in NYS

In New York State can employers pay hourly workers for their lunch hours? Hourly employees get interrupted during their lunch breaks often.

There is no federal law that requires meal periods or rest breaks. However, some states have adopted such laws. NYS is one of them.

Generally, employers in NYS must provide employees working 6 or more hours with at least a 30 minute meal period.

Neither federal nor NYS laws prohibit employers from compensating employees for meal periods. If an employer chooses to do so it’s a matter of company policy/practice.

Employees must be relieved of all work responsibilities during meal periods. If an employee does any work during his meal period the time must be compensated and counted towards the total number of hours worked in the workweek.

It’s one thing to ask an employee on his/her lunch break a quick question. But, if the employee is continually interrupted or asked to perform work duties while on break, then the time must be counted as hours worked and be paid.

October 24th, 2016, 6:09 PM |  Posted in: Compensation |
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Hours of Rest

Is it required to give employees 8 hours of rest between shifts?

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

The FLSA doesn’t limit the number of hours in a day or days in a week an employee may be permitted or required to work. This goes for exempt or non-exempt employees.

Some states have adopted days of rest laws. Feel free to post a comment with the state in question. We can then research any applicable laws.

It’s worth noting that certain commercial drivers are covered under different federal laws that require breaks.

Even in the absence of legislation, employers shouldn’t require employees to work excessive hours. Excessive work hours can result in fatigue on the worksite. Depending upon the job, this can mean an increased safety risk both for the employee and his/her co-workers. Thus, employers are encouraged to limit unusual work schedules or extended shifts.

October 23rd, 2016, 9:15 PM |  Posted in: Labor Laws |
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Terminating an Employee on Short Term Disability

Hello, I am at a company in Massachusetts with 43 employees. We have an employee who has gone on short term disability. Do we have to keep her job open for her to return or can we legally terminate her based on the amount of work she has missed? She has been with the company for about a year and half and is in her 70s. Please advise.

Short- and long-term disability programs offer income replacement to employees who become unable to work due to an injury or illness unrelated to their job. Though such benefits don’t necessarily provide reinstatement rights, there are federal and state leave and discrimination laws that must be considered.

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons.

The FMLA applies to all public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

With only 43 employees (assuming the aforementioned criteria are not met) you’re not required to comply with the FMLA. Some states have adopted their own leave laws and Massachusetts is one of them.

In Massachusetts, employees who work for employers with 11 or more employees may earn and use up to 40 hours of paid sick time per calendar year. There are other leave laws in Massachusetts; however, they pertain to parental obligations which are being assumed to not be the issue in this case.

Another federal law to be considered is the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

It’s the employer’s responsibility to determine if an employee has a covered disability under the ADA. If so, it’s also the employer’s responsibility to engage in an interactive exchange of information with the employee to determine what, if any, reasonable accommodations can be made to allow the employee to perform her job. A short term leave of absence may be considered a reasonable accommodation under the ADA.

The first step should be to determine whether the employee’s condition qualifies as a disability under the ADA. If so, then the employee should be provided with a short term leave of absence. The duration of the leave should depend on business operations but you must also consider what leave options have been awarded to other employees in similar situations in the past. The ADA doesn’t require employers to provide never-ending leaves of absences.

It’s also worth considering what, if any promises, even implied ones that you made to the employee. Did you guarantee the employee a specific amount of time off? If so, it’s important to adhere to your promises.

It’s always important to treat employees fairly and in a consistent manner. In this case, it’s even more so since the employee in question is covered under the federal Age Discrimination in Employment Act (ADEA). The ADEA forbids age discrimination against individuals 40 years or older when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. Even an employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on employees age 40 or older and is not based on a reasonable factor other than age.

Basically, this employee should be treated in the same manner as any other employee would be. If other temporarily disabled employees have been given 4 weeks of leave, for example, then this employee should receive the same entitlement.

Remember to document communications with the employee. And, if/when you decide to terminate the employee be sure you can back up your decision in case a discrimination claim is filed.


October 23rd, 2016, 9:09 PM |  Posted in: Labor Laws, Termination |
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FT to PRN and Accrued PTO

If an employee is full time with accrued PTO time, then goes to PRN status are they entitled to receive their accrued time in Columbus, Ohio?

There is no federal law that regulates vacation benefits for private employers. However, some states have adopted laws on the matter, including Ohio.

In Ohio, vacation time is considered an earned benefit. Employers are still able to adopt policies that provide for the forfeiture of unused vacation time. Basically, if an employer doesn’t have a policy stating that unused vacation time is forfeited, then an employee is entitled to their unused, accrued vacation time at the time of separation from employment.

This law doesn’t specifically address when an employee is no longer eligible for vacation benefits, like when transferring from a full time to PRN (per-diem) status. But, since vacation time is considered an earned benefit, it can be assumed that the same regulations apply.

So, if an employer has a clearly written policy that provides for the forfeiture of unused vacation time upon no longer being eligible for vacation benefits then withholding such time is permitted. However, if such a policy doesn’t exist, the employee should be paid for the time.

It’s worth noting that it makes sense to withhold an employee’s vacation payout if the employee is terminated for just cause or resigns without notice. However, withholding an employee’s vacation payout simply because he/she is no longer eligible to receive such benefits is not good business practice. The employee earned the time and should be compensated for it.


October 23rd, 2016, 8:34 PM |  Posted in: Benefits |
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Transitioning Vacation Time

Hello, we are looking to move to a calendar year effective January 1, 2017. The majority of employees have 2 weeks vacation (that can be taken after 1 year of working). For example, we have an employee who started Aug 10, 2015 and as of August 2016 has taken 6 days off (48 hours). My understanding is that she still has accrued 32 hours of vacation time for her first 12 months of work. Since Aug10, 2016 (1 year anniversary) through to Dec 31, 2016 she will accrue a further 30.8 hours. She has already taken 6 days (48 hours) in Aug 2016. If I understand the math that would mean she has accrued 80 hrs (Aug 2015-Aug 2016), taken 48 hrs & has still accrued 32 hrs. She will further accrue 30.8 hours for the remainder of 2016. If we then grant her 80 hrs on January 1, 2017 she would have a total of 110.8 hours to take in 2017. Am I correct so far??? If yes, next question would be in 2017 she will actually get to take more than 2 weeks during the calendar year (so things can be transitioned) before 2018. As well, if she were to quit August 2017 where would things stand if she took her 110.8 hours earlier in 2017? Thank you for all your help.

Transitioning vacation plan years is a common question. Basically, on January 1, 2017 employees will receive a one-time adjustment in their vacation pay which will be prorated based on their anniversary date. The adjustment covers them for the entire 2017 plan year.

Two weeks vacation per year calculates to 80 hours of vacation time (assuming employees work 8 hours a day, five days a week). Divide total number of vacation hours (80) by number of weeks in a year (52) = 1.538 hours of vacation earned per week.

The employee in question accrued 80 hours of vacation from August 10, 2015 to August 10, 2016. She used 48 hours; thus, has 32 hours remaining, as you state. She then started to accrue vacation hours for the next plan year, August, 2016 to August, 2017.

So, on January 1, 2017 the employee should have the unused 32 vacation hours from last year’s plan and the vacation hours she’s accrued this year since August (30.76 hours). She should then be given the remaining hours to be accrued during her anniversary plan year (49.21 hours) and the hours to cover her from August 10, 2017 to December 31, 2017 (30.76). This will cover her for the entire 2017 calendar year.

The calculation is: hours of vacation earned per week (1.538) x weeks of vacation entitlement (20) = 30.76 hours of vacation.

Assuming the employee doesn’t use any vacation time, she would have 62.76 hours as of the end of this year and should be given just about 80 hours (79.97 depending on your rounding) for a total of 142.73 hours. This covers her until December 31, 2017. Then on January 1, 2018 she will receive her regular 80 hours of vacation time.

BTW, you’re math is right just remember to adopt a rounding practice that is consistently used.

The calculations can be overwhelming; however, once completed the administration of an annual vacation policy is less burdensome. Before the transition, make sure you give employees ample notice of the policy change, preferably in writing. Be ready to address a lot of concerns from employees.

What happens when an employee uses their vacation time before it’s earned and separates from the company is usually a matter of company policy/practice and state law. There is no federal law that regulates vacation benefits for private employers. If you intend to recoup borrowed vacation time from an employee who separates from the company, it’s important to be aware of any applicable state law and make sure you’re policy is appropriately written. Further, there are laws regarding deductions from employees’ pay. So, if you intend to recoup borrowed time from employee’s wages, restrictions for doing so under the federal Fair Labor Standards Act (FLSA) and similar state law must be considered.


October 23rd, 2016, 8:12 PM |  Posted in: Benefits |
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