Human Resource Blog

Lunch?

An employee works 3 eight hour shifts and one twelve hour shift per week in an Emergency Department. Her schedule is for either 8.5 hours or 12.5 hours. Sometimes, she doesn’t clock out for lunch because she was told she has to stay here for lunch (3o minutes) because she is the operator for the ER. If she can’t find someone to cover for her particularly (which is usual). I am new to HR and I am wondering if it is legal for the employer to require the employee to stay without paying her. She was told to keep snacks in her drawer to eat for lunch if she needs to be here. This seems like the employee still being on the clock to me. Also, if she does not clock out, they automatically deduct 30 minutes from her work schedule but never ask me if she was working or just did not leave. Can you refer me to the law concerning this or is it just as they say. I was also told that they are required by law to give her 30 minute lunch break. What law is that?

You do not say what state the employee works in, and it makes a huge difference. There are a number of states (nineteen, to be exact) that require meal breaks for virtually all employees. If the worker is in one of those states, like California or Illinois, yes, she is entitled to a meal break. Other states such as Texas have no meal break law.

Generally, under the federal FLSA or Fair Labor Standards Act, an employee need not be paid for any meal break longer than 20 minutes, if the employee is relieved of all duties. Even if there is no where for the employee to eat but her work station, as long as she is relieved of all duties, she can be unpaid for that break.

An employer can legally require that an employee remain on the premises during an unpaid meal break in every state except California.

However, parts of your post seem to suggest that this employee is expected to take calls or otherwise work even while she is on her meal break. If this is true, the employee must always be paid for the break.

Obviously, it is illegal under FLSA and the various state minimum wage laws for the employer to clock the employee out, or change her time card if she does not actually receive a break.

An employer can require that an employee take an unpaid meal break, and discipline or terminate any employee who does not. But, the employer cannot require that the employee work during her mandatory unpaid meal break.