Forced to Clock Out for Two Meal Breaks - Is This Legal?

Dear Nurse Beth,

I work as an LPN night shift charge nurse at a nursing home on 12-hour shifts 6p-6a. I am always the only licensed staff in the building. Until recently when the facility was sold to new management, I have always been paid for all 12 hours, but now they are telling us that everyone MUST clock out for 30-minute breaks twice on 12-hour shifts, and will deduct them automatically even if we don't take breaks. They are demanding that night nurses do this as well, and will only pay for one of the two breaks if we turn in a missed break slip. But, is this legal?

I thought they were supposed to have nurse coverage on the floor 24/7... not 23/7??? Has something changed over the years that I am not aware of? Can someone please tell me I'm not crazy and that they are lying or violating some law..? I work in Minnesota. I've never been told it's the law that I have to take unpaid breaks and work off the clock.

Dear Is This Legal,

Minnesota Meal Breaks

Here is Minnesota's statute on meal breaks:

177.254 MANDATORY MEAL BREAK.

Subdivision 1.Meal break.

An employer must permit each employee who is working for eight or more consecutive hours sufficient time to eat a meal.

Subdivision 2.Payment not required.

Nothing in this section requires the employer to pay the employee during the meal break.

So this says it is the law to provide you with a meal break. The employer is not required to pay you during said meal break.

However, you must be free of all duties during unpaid time, including meal breaks. You should not be answering your phone, you should not be "on-call", you should not be interrupted. You must be off the clock in terms of pay...and responsibility. In other words, you must be relieved of all work duties during your unpaid meal break.

Bona fide meal breaks are not compensable only if they are not worked time. Are you called to answer doctor phone calls during your break? Not OK. Do the nursing assistants approach you on work-related issues during your meal break? Not OK.

It is NEVER legal to have wages automatically deducted for breaks not taken. If you did not receive a 30-minute break relieved of all duties, your wages should not be deducted. The facility could be at risk here for a lawsuit, and they wouldn't be the first.

You are either off the clock, and relieved of duties, or on the clock and working. Which is it?

Staffing Requirements

As far as staffing requirements, Federal law requires Medicare and Medicaid certified nursing homes to have a registered nurse (RN) on duty at least 8 hours a day, 7 days a week; and a licensed nurse (RN or LPN) on duty 24 hours a day. Some states have stricter requirements.

144A.04 QUALIFICATIONS FOR (Nursing home) LICENSE (Minnesota)

Subdivision. 7.Minimum nursing staff requirement.

Quote

The minimum staffing standard for nursing personnel in certified nursing homes is as follows:

(a) The minimum number of hours of nursing personnel to be provided in a nursing home is the greater of two hours per resident per 24 hours or 0.95 hours per standardized resident day.

(b) For purposes of this subdivision, "hours of nursing personnel" means the paid, on-duty, productive nursing hours of all nurses and nursing assistants, calculated on the basis of any given 24-hour period. "Productive nursing hours" means all on-duty hours during which nurses and nursing assistants are engaged in nursing duties. Examples of nursing duties may be found in Minnesota Rules, part 4655.6400. Not included are vacations, holidays, sick leave, in-service classroom training, or lunches.

Also not included are the nonproductive nursing hours of the in-service training director. In homes with more than 60 licensed beds, the hours of the director of nursing are excluded. "Standardized resident day" means the sum of the number of residents in each case mix class multiplied by the case mix weight for that resident class, as found in Minnesota Rules, part 9549.0059, subpart 2, calculated on the basis of a facility's census for any given day. For the purpose of determining a facility's census, the commissioner of health shall exclude the resident days claimed by the facility for resident therapeutic leave or bed hold days.

(c) Calculation of nursing hours per standardized resident day is performed by dividing total hours of nursing personnel for a given period by the total of standardized resident days for that same period.

(d) A nursing home that is issued a notice of noncompliance under section 144A.10, subdivision 5, for a violation of this subdivision, shall be assessed a civil fine of $300 for each day of noncompliance, subject to section 144A.10, subdivisions 7 and 8.

So while Minnesota statute does not require 24/7 licensed nurse coverage per se, it does require a requisite number of nursing care hours (NCH) per resident per day. However, Federal law requires a licensed nurse (RN or LPN) on duty 24 hours a day. I do not know if your facility is meeting these requirements.

For example, let's look at your situation. You provide 12 hours of nursing care hours (NCH) per shift. Or at least, you used to. Now you provide 11 hours of NCH per shift (because time off the clock for meal breaks does not count)...

Do your 11 hours of NCH (plus the NCH provide by non-licensed staff) meet the needs of the patients as required for licensing of the facility? The NCH requirements are a function of the number of residents or census, and according to the formula given above.

Disclaimer- I am not an attorney. But this sounds potentially like an attempt to save money by mandating meal breaks - without actually PROVIDING meal breaks.

Ask your supervisor for clarification on the 2 mandated meal breaks.

Best wishes,

Nurse Beth

Author, "Your Last Nursing Class: How to Land Your First Nursing Job"...and your next!

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