Wage and Hour Law Update : Wage & Hour Lawyer & Attorney : Jackson Lewis Law Firm : Minimum Wage, Overtime & Service Contracts

As previously reported here, the recent Health Care Reform legislation includes a provision, which became effective immediately upon passage of the Act, requiring employers to provide breaks for employees to express milk for nursing children.  The USDOL issued a fact sheet this week explaining its view of an employer’s obligations under this enactment.  The highlights are below and the full government Fact Sheet can be viewed here.

·         The requirement only applies to non-exempt employees however the DOL notes that state laws with similar requirements may cover all employees;

·         The break time need not be paid as long as the individual is completely relieved of work duties and the activity does not occur during an otherwise paid break period;

·         Reasonable break time must be provided for up to 1 year following birth.  There are no set rules regarding frequency or length and each situation stands alone;

·         An employer is required to provide a location shielded from view and a private bathroom will not suffice.  The space need not be dedicated but must be made available immediately when needed; and

·         Employers with under 50 employees can assert an undue hardship defense, however, there is no guidance as to whether this is determined on a location by location or employer-wide basis.  Forthcoming regulations from the USDOL will hopefully clarify this issue.

All employers must ensure compliance with this new legal mandate.

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On March 23, President Obama signed a bill which amended the FLSA to require most covered employers to provide breaks to mothers for the purposes of breastfeeding (as well as furnish private space for them to do so).  While the new law does not require that nursing mothers be paid for such break time, state law may.  An in depth analysis of the new law is available here.

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Over the past year or so, employers in the health care industry, particularly in the Northeast, have been – and continue to be – targeted in a number of lawsuits alleging improper payment of hours worked by their hourly employees. Specifically, these lawsuits allege that certain health care facilities automatically deducted time for meal breaks, even when an employee worked through the meal period. Several of the lawsuits also include claims for unpaid pre- and post-shift work, as well as unpaid training time. The lawsuits seek back wages, interest, attorneys’ fees, and liquidated (double) damages.

Under the federal Fair Labor Standards Act (FLSA), most employees must be paid at least the minimum wage (currently $7.25 per hour) for all hours worked and must be paid one-and-one-half times the “regular rate of pay” for all hours worked in excess of 40 hours in a workweek. Under the FLSA, bona fide meal periods do not count as “hours worked.” Ordinarily, 30 minutes or more is long enough for a bona fide meal period, although meal periods of less than 30 minutes in which the employee is completely relieved from duty for the purpose of eating may be bona fide under certain conditions. Factors to be considered in determining whether a meal period is bona fide include, among others, whether the employees have sufficient time to eat a regular meal, whether there are work-related interruptions to the meal period, and whether the employees have agreed to the shorter period. Meal periods of less than 20 minutes should be especially scrutinized to ensure that the time is sufficient to eat a regular meal under the circumstances.

Many employers automatically deduct a 30-minute lunch period from an employee’s total daily time worked. Typically, such deductions are made unless the employee notifies the employer that he or she did not take a 30-minute lunch period that day. This practice generally is permissible under the FLSA, provided that the employer accurately records actual hours worked, including any work performed during the lunch period (and accurately compensates the employee for the actual hours worked).

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