Unpaid overtime...

Maggie19662 · Feb 16, 2008

when this page refers to the general term work breaks or rest breaks, it means what employees often refer to as snack, coffee, smoke, restroom, toilet or bathroom breaks. when this page refers to meals or meal breaks, it means what employees often refer to as dinner or lunch breaks.

work break and meal laws

there are no federal labor or employment laws that require employers to set specific intervals or even make time for employees to take work breaks or eat meals.

fewer than half the states have laws that require employers to make time for employees to eat meals. even fewer states have laws that require employers to make time for employees to take work breaks. (see work breaks and meals state laws below.)

although there are no federal and few state laws that require employers to give bathroom breaks, the federal occupational safety & health administration (osha) has interpreted a section in its sanitation standard, to mean that it "...requires employers to make toilet facilities available so that employees can use them when they need to do so. the employer may not impose unreasonable restrictions on employee use of the facilities."

osha further clarified this interpretation in a letter dated april 23, 2003. additionally, one of osha's safety and health guides recommends that "additional break periods and meals should be provided when shifts are extended past normal work periods."

even though giving rest or meal breaks is not required under federal law and the laws in most states, many employers do so anyway in accordance with industry (and osha) standards. industry-standard breaks typically range from 5 to 30 minutes each.

if employers do voluntarily give rest or meal breaks in states without related law provisions, the work breaks are at least somewhat regulated by the federal fair labor standards act (flsa).

rest breaks

under the flsa, employers who do have a policy of giving one or more short rest breaks of about 20 minutes or less, must pay employees for their time while on such work breaks.

in other words, the flsa does not require employers to give rest breaks of any length. but, if employers give short rest breaks anyway, under the flsa the work breaks are counted as time for which employers must pay employees. if authorized rest breaks extend work hours into overtime, under the flsa employers must pay the overtime to eligible employees. meal breaks are the only exception to these rules. more information about meal breaks is below.

employers do not have to pay employees for taking unauthorized work breaks or extending authorized work breaks without permission, if employers have previously made it clear that doing so is not allowed and punishable. for example, a clear statement in an employee policy manual might be considered by a court to be sufficient.

the federal americans with disabilities act (ada) or state equivalents might indirectly require employers to reasonably grant or occasionally extend work breaks for disabled workers, such as bathroom breaks. employers must reasonably accommodate workers who are protected by the ada.

states may enact laws that have the same or better work break provisions than those in the flsa. but, as previously indicated, only a few states (listed below) have laws that include provisions for rest breaks or any other type of work breaks.

meal breaks

under the flsa, if employers do give meal breaks voluntarily, they do not have to pay employees while they're on such work breaks. however, the breaks must be bona fide meal breaks for employers to be relieved of break pay.

for example, an employer who voluntarily offers a daily meal break by policy, but who does not pay employees while they're on their meal break, must allow employees to take the whole break without working. otherwise, it is not a bona fide meal break under the flsa. instead, it counts as work time, for which the employer must pay employees.

in other words, employers can't simply label work breaks as meal, dinner or lunch breaks to evade paying employees while they're on such breaks. employers must allow employees to take meal breaks free of work duties.

states may enact laws that have the same or better meal provisions than those in the flsa. but, at this writing, only the states listed below have laws that include provisions for meal or other work breaks.

work break and meal state laws

the 21 states listed below have laws that include some sort of provisions for work breaks. of the 21 at this writing, only 19 specifically require a rest or meal break for adults, while only 7 specifically require a rest break in addition to a meal break for adults. vermont nonspecifically requires only "reasonable opportunities to eat and use toilet facilities." wisconsin requires meal breaks only for workers under 18 and simply recommends them for 18 and over.

state law provisions for work breaks and meals mentioned on this page might not apply to all employees in a particular state. click a state below for specifics.

if your state isn't listed, it means that there is no state law that specifically addresses work breaks or meals (at least not available on the web). but your state might have related rules, regulations or guidelines that do. alternately or additionally, your municipality might have a work break law or related orders, rules, regulations or guidelines. to find out, start by contacting your state's labor department.

employers may grant more work breaks or those of longer duration than state or municipal laws require, but not fewer or of shorter duration. employers may also "force" employees to take work breaks, particularly to avoid violating state or municipal laws that require them.

in states and municipalities where there are no laws or related rules, regulations or guidelines with work break or meal provisions, under the flsa work break and meal periods are a matter of voluntary agreement between employers and employees or employers and unions.

if your employer is violating work break or meal provisions in state laws or the flsa, your state's labor department might help you to right the wrong. if not, a lawyer might help.

work break and meal agreements

collective bargaining agreements (contracts) might require employers to give rest and meal breaks to union employees, whether or not state laws do. if so, under state right to work laws, nonunion employees working in a bargaining unit might be entitled to take the same work breaks as union employees working in the same bargaining unit. consult your local union representative (e.g., shop steward) if your employer violates its collective bargaining agreement. if your employer or union violates a right to work law, consider consulting a lawyer.

explicit and implied employment contracts also might require employers to give rest and meal breaks to employees, whether or not state laws do. consider consulting a lawyer if your employer breaches either type of contract.

in the absence of contract clauses and state laws or rules, regulations, or guidelines that say otherwise, employers may call most of the shots. for example, employers may set specific work break intervals and meal times.

but, of course, employers can't rightfully force employees to eat while on meal breaks, use the restroom while on bathroom breaks, drink coffee while on coffee breaks, etc. however, employers are not obligated to grant unscheduled "replacement" breaks to employees who use their scheduled work breaks for purposes other than intended.

Maggie19662 · Feb 16, 2008

Work-Off-the-Clock

if your employer makes you clock out and finish your work
if you have a morning meeting before work:nono:
if your employer requires you to work on the weekends without clocking in

All of this time you spend working should be paid be counted as hours worked for purposes of overtime pay whether or not your employer wants you to be "clocked in."

Maggie19662 · Feb 16, 2008

Isnt it illegal to make Nurses work off the clock?

We are being asked to do so in order save money. We are hourly, and being asked to clock out to do documentation.

Answers:

it is illegal. A nursing home here tried to do the same thing. A nurse turned them into the labor board and that rule was reversed real quick. Their idea was to save money buy telling nurses that they had to be off the clock after the shift and that they would be written up if they were there overtime. THe idea of a lawsuit was more expensive than the money the money they were trying to save. Also if you work off the clock it can jeopardize your license. Yes this is a federal law violation. yes, it is illegal. are you a part of a nurse's union? you should report it to them immediately. if you're not unionized, talk to someone in hr. It's a violation of the law. Contact your state's Department of Labor. (It's a violation of state labor law, not federal law unless you work on a federal contract or for the federal government.) They'll get everyone back pay and see to it that the problem does not continue. Yes it is illegal.

However if you go along with it, it could be considered a free donation of effort. as you present it here, yes it is illegal. Yes. It's a violation of the Fair Labor Standards Act (FLSA) Do you have a union, if so, what does your contract say,

If not, why not, and why not organize one. Yes not just as nurses but n e job. and they dont have a right to fire u if u refuse so i would refuse. if they do fire u, take them to court and sue the pants off your boss. if she has nice pants. lol if they want to work off the hour they can but they can not be forced to do it. if you are being forced to work than go sue that bastard. Not cool at all. You can't be asked to work and not be compensated. It's that plain and that simple. is the hospital your working for unionized? that's technically illegal what they are asking you to do. if it's part of your job duties, then you are entitled to pay. What state do you work in, contact department of labor and ask questions if a union is not present, hopefully the HR at your place isn't corrupt. I'm sure those asking you to work without pay are making their money. You'r eonly supposed to work the hours you are scheduled. You are not supposed to be working for free. it's illegal to make anyone work off the clock for any reason unless you volunteer to do so. If Not, you can report them to your local IRS agency.

Read this article http://www.scalaw.com/info/article2.html... it is. you have probably noticed that Wall mart has recently paid out millions because of doing this very thing to its people. you do not have to work for free. you are a person who sells your education and ability's to a company or business for fair compensation. if the business you work for is trying to make you work for free then take that business to court. they know it is not legal and are hoping that you don't or will overlook it. ask them if they work for free or are willing to give up their salary and or benefits as they are asking you to. Documentation is part of their job and is required by law to document the days events and thecare and procedures performed on each patient.it is required by the state board of nursing.In a nursing home if things arent documentedby each shift ,seven days a week the facility can be fined and nurse can be dissmissed or out on leave.Hospitols are also required to have basicly the same type of imformation.An employer who ask demand or whatever that the charting is to be done on nurses time had better find other ways to save a buck.Documentation is necessary and very important part of their work,and nurses are taught in school how to chart accuratly and precise,thus keeping their license safe and to cover their employers but in case of a law suit.But look at it from the patients well being,if you arent given time to chart everything that has happened during your shift so the next shift has something to go back to.then you are putting that patient in jeapardy.And again the nurse is the one who will suffer if harm comes from not charting.You can best your asse that the facility has a darn good lawyer to protect them.If working off the clock is permiited,what next will the employer want,let me see,dont,stay after to give each other report or count the meds,unless you clock out first?

I love my cat! · Feb 16, 2008

It is illegal. I know because I use to work at a well-know non-union Hospital that would alter the electronic time cards of those that clocked out late. Nurses reported it to the "higher'-ups" within the Hospital, but nothing was done (surprise). So, the State was contacted and an audit was done.

The Hospital had to pay back MILLIONS in back-wages.

I never clock out early (I never did), but I always write down my times. An electronic time clock does not guarantee accuracy....I learned the hard way.

I am also unsure of the laws surrounding job injuries if you are still there at a facility physically, but working off the clock? Is an employee covered?

Anyone have any link to this?

Thanks!

Maggie19662 · Feb 17, 2008

on and off the clock: one approach to alarming workers' compensation costs

grant results

last updated: november 1998

table of contents---------------------------the problemthe projectresultsafter the grantgrant details & contact informationbibliography

summary

in 1995, the national conference of state legislatures sponsored a three-day symposium designed to bring together private and public policymakers to discuss key issues concerning 24-hour coverage, a program designed to control costs associated with workers' compensation and health care.

key results

the "24-hour coverage symposium" took place on september 5-7, 1995, in philadelphia. the meeting provided an opportunity to evaluate the 24-hour pilot projects and to advise participants on the legal impediments that must be overcome in implementing a program.

one-hundred-fifty people attended the meeting, including governors' office staff, state legislators and their staff, insurance regulators, workers' compensation administration, and insurers.

funding

the robert wood johnson foundation (rwjf) supported this project through a grant of $61,834.

see grant detail & contact information

back to the table of contents

the problem

employer-paid health insurance typically covers only those injuries sustained outside of working hours; on-the-job injuries are covered by a separate workers' compensation system. unlike general health insurance, the workers' compensation system also pays for wages lost while a worker recuperates. traditionally, disability income and rehabilitation benefits have accounted for the greater part of the cost of providing workers' compensation benefits. in recent years, however, workers' compensation medical costs have escalated sharply and now make up a much greater proportion of total workers' compensation costs than in the past. this escalation has prompted state policymakers to consider new strategies for controlling these medical costs. in particular, they are testing a concept known as 24-hour coverage, which includes removing all or part of the boundary between occupational and non-occupational claims. representing a complete system of medical and disability benefits, 24-hour coverage is available to individuals regardless of whether an injury occurs during work or non-work hours. however, the approach does present significant challenges for states: both workers' compensation and group health insurance have unique characteristics that must be preserved to avoid such problems as overuse of medical services, disincentives to return to work, higher disability costs, and less attention to safety by both employers and employees.

the national conference of state legislatures (ncsl) has worked extensively to provide states with research findings and information on both workers' compensation and health care policy and, since 1985, has provided a national forum on labor issues, including 24-hour coverage. with ncsl's technical assistance, at least nine states passed legislation authorizing 24-hour coverage pilot projects, and most other states have shown an interest in these pilot efforts. one pilot project, in oregon, received funding from the robert wood johnson foundation (rwjf) under grant id# 020229. at the time of the grant to ncsl, rwjf was developing its national workers' compensation health initiative.

back to the table of contents

the project

the objective of this grant was to convene a conference for state policymakers to discuss key issues related to 24-hour coverage. the conference was scheduled to coincide with a meeting of the national association of insurance commissioners (naic), which cosponsored it along with the ncsl, the council of governors' policy advisors (cgpa), and the international association of industrial accident boards and commissions (iaiabc).

the three-day conference aimed to: examine the pros and cons of 24-hour coverage; summarize and review existing pilot projects and discuss evaluation criteria and methodology for evaluating them; review the current legislative and regulatory environment for 24-hour coverage; and provide a forum for rwjf to introduce its national program, workers' compensation health initiative, to state policymakers. other planned products included a number of working papers, conference proceedings, and a special session on 24-hour coverage issues at the annual meeting of the ncsl.

back to the table of contents

results

the "24-hour coverage symposium," held in philadelphia, pa., on september 5-7, 1995, drew 150 participants from 30 states, puerto rico, and the district of columbia. attendees included governors' staff, state legislators and staff, insurance regulators, workers' compensation administrators, insurers, managed care representatives, health care providers, employers, and third-party administrators from both the public and private sectors. the symposium provided an opportunity to evaluate the 24-hour pilot projects and to advise participants on the legal impediments that must be overcome in implementing a program. key sessions of the symposium included:

"what is 24-hour coverage? the many variations of the theory" provided an overall context for the symposium sessions.
"the legal and regulatory environment" discussed the barriers to implementing a 24-hour coverage program.
"24-hour coverage: data needs and program evaluations" reviewed current problems related to data collection and strategies for developing efficient and effective data collection.
"the politics of workers' compensation" presented various political perspectives on workers' compensation.

in addition, there were workshops and roundtables on establishing pilot projects and other issues, with concurrent sections tailored to public- and private-sector concerns.

the program officer, michael beachler, made a presentation on the foundation's new national program, the workers' compensation health initiative, which supports innovative projects to address the quality and high costs of medical care under workers' compensation programs.

communications

all symposium participants received a binder containing written papers or outlines of many of the presentations, along with other background material. the binder includes: original papers on 24-hour coverage, the legal and regulatory environment, politics of the issue, and data collection and evaluation; an naic progress report on implementation of 24-hour coverage; and summaries of state statutes, regulations, and activities. the ncsl also has mailed the binder in response to requests for information about 24-hour coverage. ncsl has received follow-up inquiries from many symposium participants as well as calls from 125 others who did not attend but heard about the project. the naic and the iaiabc also report receiving numerous calls related to the symposium.

the symposium's sponsors presented a report on the conference at the ncsl annual meeting in st. louis, mo., in july 1996. the session reported on the findings of the symposium, and all attendees received copies of the symposium binder. the sponsors continue to disseminate the binder upon request, and the naic puts out a quarterly publication on 24-hour coverage.

back to the table of contents

after the grant

ncsl continues to assist states in designing and implementing 24-hour coverage pilot projects, as does the naic. the groups fund some staff for monitoring issues related to 24-hour coverage and intend to seek additional funding from foundations to finance major projects in this area. the sponsoring associations planned a joint meeting to discuss how they could coordinate their activities better in order to facilitate state experimentation in this area.

the naic continues to work with the foundation's national workers' compensation health initiative and announced the availability of foundation grants for workers' compensation projects at its winter national meeting in san antonio, texas, on december 6, 1995.

SillyStudent, ASN, RN · Apr 17, 2008

I clock in on time every single day. I clock out when I am done working. If I am still charting, I am still on the clock.

If TPTB decide they don't like that, I will find a new job. We are not on salary, (or as I like to call it, 'slavery') and we are expected to do what is necessary to take care of our patients. Charting is work. Get paid for it.

Of course, my hospital does not complain about it. I guess I am just lucky.

aliciabauer · May 1, 2009

If you are interrupted during your unpaid break for ANYTHING work related, phone call, opening a door for a patient to walk through... ANYTHING.. then they have to pay you, so fill out your missed lunch form everytime you are interrupted. If they give you grief state the law to them, about being 100 percent relieved of all work duties, and if not it has to be a paid lunch break.

diane227, LPN, RN · May 13, 2009

If you are a non exempt employee by law your employer has to pay you for every hour that you work. A non exempt employee is one who is paid by the hour. No one should be clocking out and continue working. If this is occurring and encouraged by management it should stop immediately. The hospital could be liable for paying back pay if an employee decided to report this to the board of labor. Working off the clock is absolutely illegal according to the National Labor Relations Board.

louisianalvn · Jun 13, 2009

Federal Law, the Fair Labor Standards Act (FLSA), trumps state law.

Some of the ways that health care facilities (especially skilled nursing ones) cheat workers

out of their overtime is:

1) Tell you to arrive early for report and THEN clock in.

2) Interrupt your lunch hour - even for a minute - then you are entitled to be paid for the hour

3) Make you attend meetings off the clock

4) Tell you to clock out and finish your charting or other work

5) Tell you to clock out and do the narcotics count

6) Tell you to clock out and wait for your relief.

They always threaten you with the loss of your license if you don't stay.

A group of Texas nurses has filed under the Fair Labor Standards Act to collect their overtime.

Although it talks about LVN's, documentation suggests that Med Aides, CNA's, housekeeping,

and food service will join in to collect their back money

It looks like the suit is expanding nation wide to many skilled nursing facilities.

Read about it here:

http://www.lvnclaim.com

Nikki Nurse · Jun 30, 2009

Look up the FLSA ( Fair Labor Standards Act), find what you need , copy it and give it to whomever is asking you to do this. It simply is not legal !

Nikki Nurse · Jun 30, 2009

Look up the FSLA (Fair Labor Standards Act), find what you need, copy it and present it to whomever is asking you to do this. It is simply illegal!