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Nov24

Clocking out for lunch breaks

I am in NYS and have a nonexempt employee who often forgets to clock out for a 30 minute lunch break when they work longer than 6 hours. Is it mandatory that they clock out? If they “forget” can the employer clock them out?

Though meal periods and rest breaks are not required of private employers under federal law, NYS does have specific mandates for employers to provide meal periods.

Under NYS labor law, every employee in a factory is entitled to at least 60 minutes for a noonday meal. Employees in other covered industries must be allowed 30 minutes for a noonday meal.

Per the NYS Department of Labor:

The noonday meal period is recognized as extending from eleven o’clock in the morning to two o’clock in the afternoon. An employee who works a shift of more than six hours, which extends over the noonday meal period, is entitled to at least 30 minutes within that period for the meal period.

Every person employed for a period or shift starting before eleven o’clock in the morning and continuing later than seven o’clock in the evening shall be allowed an additional meal period of at least 20 minutes between five and seven o’clock in the evening.

Every person employed for a period or shift of more than six hours starting between the hours of one o’clock in the afternoon and six o’clock in the morning, shall be allowed at least 60 minutes for a meal period when employed in or in connection with a factory, and 45 minutes for a meal period when employed in or in connection with another covered industry, at a time midway between the beginning and end of such employment.

Now, employees are not required to clock out for their lunch breaks. If you decide you want to pay employees for their lunch breaks that’s completely up to you. However, make sure you have some way of verifying the employee took their lunch break. Even if it’s a simple form the employee has to sign each day to confirm a lunch break was taken. You want to ensure you have proof employees are taking their legally mandated breaks.

Just to note, employee compensation is regulated by the federal Fair Labor Standards Act (FLSA).

Under the FLSA, short breaks lasting less than twenty minutes in duration must be compensated.

Meal periods typically lasting thirty minutes serve a different purpose than short breaks and are not time required to be compensated. However, 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.

If an employee is required to clock out for a lunch break and forgets to do so, the employer is permitted to clock the employee out or edit the employee’s time sheet to document the correct hours worked.

Under the FLSA, employers have the responsibility of ensuring non-exempt employees’ hours actually worked are accurately recorded. Even though an employer may edit an employee’s time sheet to show the correct hours worked, an employer may not alter the time sheet to erase any time actually worked by the employee or in an attempt in any way to avoid paying overtime compensation as required by the FLSA.

Lastly, it’s advisable to only edit an employee’s time sheet when absolutely necessary. It’s better to enforce your clocking in/out policy. Employees who fail to follow the policy can and should be disciplined appropriately. Such policy violations usually result in a verbal warning or two and then written warnings. Usually, after a written warning, employees will understand the importance of having to clock in/out. HTH.

This entry was posted on Tuesday, November 24th, 2015 at 9:11 pm and is filed under
Compensation, Labor Laws.
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