Human Resource Blog

If the employees each take at least 20 minutes for an uninterrupted meal break, then you are in compliance with Illinois law. There is no requirement that employees must be off the clock while they are eating. In fact, it is very generous of you to pay them.

However, if the employees are still on duty and must interrupt their meal break to handle work tasks, then you are in violation of the meal break provision of the Illinois One Day Rest in Seven Act.

Some states allow an employee to waive the right to a meal break, as long as it is done in writing. So if one of your employees declines a meal break, you have broken the law.

Our suggestion is that  you make arrangements for every employee to have at least a 20 minute uninterrupted meal break on every shift. You can make the employees clock out for these breaks, and they can be unpaid.  

If you are sending non-exempt employees from Florida to California, you have bigger problems than travel time — but we will address that question first.

The same rules apply to Sunday travel as for business travel on any other day of the week. If the travel occurs during the time of day when the employee normally works, then the employee must be paid for it. This includes time as a passenger on a plane or in a car, and time spent waiting at the airport.

Suppose Joe normally works 7 a.m. to 3 p.m. His 4-hour flight leaves at 8 a.m. Joe is entitled to payment for the flight, plus any travel that occurred after 7 a.m. and before 3 p.m. that day. (This is true, even though Sunday is not normally a work day for Joe. It is the time of day, not the day of the week, that matters.) If the flight left at 5 p.m., Joe would not be entitled to payment for travel time because this is outside his normal work day.

Be aware that driving is work, so any time the employee spends driving must be considered paid travel time. Also, overtime provisions apply — if the travel time results in Joe working more than 40 hours per payroll week (including travel) he must be paid overtime.

However, be aware that last summer the California Supreme Court ruled that any employee working within the state borders — even on a temporary assignment — is covered by California employment laws. California has the most restrictive employment laws in the nation. Just to pick a few, this means that while in California your employees are entitled to:

       Overtime at 1.5 times the average rate after working 8 hours in a day OR 40 hours in a week; double time after working 12 hours in a day

       Immediate payment including all wages and vacation if terminated 

       A 30-minute meal break within 5 hours of the start time on each shift of 6 hours or more; the break must be paid unless the employee is allowed     to leave the premises; additional restrictions apply to night-time shifts

       Any employee who misses a meal break is entitled to an additional hour of pay for the day. This does not count towards overtime.

       A 10-minute  paid rest break in the middle of each 4-hour work segment. Any employee who misses one or more10-minute breaks is entitled to an additional hour of pay per day, which does not count toward overtime

Read more about California labor laws at: http://www.dir.ca.gov/dlse/DLSE-FAQs.htm

We can understand your frustration, because your resources are probably already strained to the breaking point. However, if the allergy to latex is permanent, this employee is probably entitled to an accommodation under ADA. You can go through the rigamarole of having his doctor fill out the paperwork and spend a lot of time trying to fight this, claiming that it is not a disability. But under the new guidelines introduced in 2009 for a *disability*, this will probably qualify as an immune system disorder, which is always a disability under ADA.

Experts estimate that 17% of all medical personnel are allergic to latex gloves, and the number grows every day due to exposure. Many people suddenly develop this sensitivity after years of exposure.

The Americans with Disabilities Act or ADA requires that an employer make reasonable accommodations for an employees disability, when the employee can perform the primary job duties, with that accommodation. This employee can perform all his usual duties, with non-latex gloves.

The employer is not required to make any accommodation that is an undue hardship. Usually, undue hardship is measured in financial terms, based on the size of the business and the total cost of the accommodation. For example, it would be an undue hardship for you to hire a second employee to perform this persons duties. But providing non-latex gloves are probably not an undue hardship, even though they are more expensive than latex gloves. A typical example of an undue hardship: for a small employer, installing a $2,000 wheelchair ramp is a reasonable accommodation. Installing a $20,000 elevator may be an undue hardship. (A large corporation might have to install the $20,000 elevator as a reasonable accommodation.)

The simple fact that an accommodation costs money, or costs more money than the employer already spends, does not make it an undue hardship. (What is the additional cost of these gloves? $10 per week? $100 per week? Shop around — while we are not experts on medical gloves, it appears that prices on the Internet for non-latex gloves are only slightly higher than latex gloves.)

You do not have to provide non-latex gloves for every employee, just for this one.

An employer is allowed to negotiate a reasonable accommodation that is more cost effective. One possible solution might be for your employee to double-glove. In other words, he would wear a non-latex glove next to his skin, and a normal latex glove over it. The latex gloves would be changed with each exam, but the inner glove would be worn all day. Using this solution would keep costs down and still protect the employee.

No, you probably cannot terminate this employee for being allergic to latex, any more than you could terminate a diabetic employee for needing to take meal breaks at the same time every day. Reasonable accommodations are a normal operating expense for employers.

You may be tempted to give this employee a smaller raise in the future to compensate for the extra money spent on non-latex gloves, but resist that urge. That would be illegal discrimination based on a disability, under ADA.  

You follow the California laws for any employee working within the state of California.

In 2009, the California Supreme Court ruled that any employee working within the state borders — even temporarily — was covered by all California employment laws including meal and rest breaks, minimum wage, vacation pay and final wages. This would apply even to employees working for a few days at a convention or meeting in California.

If you have an employee who is physically in the state of California, the fact that you are in New York is not a defense against fines and penalties for violating California labor laws.

This is not discrimination if there is a valid business reason for the decision, and it affects employees from a variety of protected and non-protected groups.

There can be a valid business reason why employees doing the same job on different shifts need to be treated differently. Suppose Lee is a front desk clerk in a hotel. When she works the 7 a.m. to 3 p.m. shift, managers and supervisors are available to relieve her while she takes an unpaid meal break. However, when she works the 11 p.m. to 7 a.m. shift, no one is available to relieve her for a meal break. On those late-night shifts, Lee works straight through without a meal break. This is entirely legal in most states. (Nineteen states have laws that require meal breaks for all or nearly all employees.) 

Eliminating meal breaks on one shift could be illegal discrimination if there was no valid business reason for it, and it had a disparate impact on a protected group of employees. This is true, even if the employer did not intend to discriminate. Suppose a factory has 3 shifts of employees. The third shift is composed primarily of Hispanic workers, while there are fewer Hispanic workers on the other two shifts. (This, in itself may be illegal discrimination.) Eliminating the meal break on the third shift means that most of the Hispanic workers do not get a meal break, while most workers of other races or ethnic groups do receive a meal break. That is de facto discrimination. However, if there are approximately equal numbers of Hispanic employees on each shift, than this action is not discrimination.