puching out 'no break'

Xbox Live Addict · Feb 17, 2008

Heh... not getting a break is one thing, but how about being interrupted during a meal break when you are OFF THE CLOCK?! I encountered this frequently in LTC - administrative nurses on their way out the door to smoke, demanding you leave the break room to sign in meds/answer phone calls/other (usually non-urgent). Then dock a person for the lunch anyway, refusing to take "no lunch" as an excuse?! Bull****. It's worse on evenings and nights when they don't really staff enough nurses for break coverage, and you HAVE to go to check on a fallen patient.

EmmaG, RN · Feb 17, 2008

all of you who do not take your meal breaks, or do work while you are eating and count that as "lunch", or do not clock "no lunch" if you do not get an uninterrupted break are enabling your employers to violate the law. this does not serve to benefit you, your colleagues, or even your patients. it only serves to line the pockets of your employers.

i'm not a volunteer.

from my link above:

non-exempt employees must be compensated for any time during which they perform activities that benefit the employer.

http://www.dol.gov/elaws/esa/flsa/otcalc/i2.asp

http://www.dol.gov/elaws/esa/flsa/otcalc/doc7j.asp

http://www.dol.gov/esa/regs/compliance/whd/whdfs54.pdf

more:

http://www.dol.gov/esa/regs/compliance/whd/whdfs53.pdf

meal breaks

bona-fide meal periods (typically 30 minutes or more) are not work time, and an employer does not have to pay for them. however, the employees must be completely relieved from duty. when choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break. see regulations 29 cfr 785.19.

example #9:

a skilled nursing facility automatically deducts one-half hour for meal breaks each shift. upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. does this practice comply with the flsa? yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.

example #10:

an hourly paid registered nurse works at a nursing home which allows a 30-minute meal break. residents frequently interrupt her meal break with requests for assistance. must she be paid for these frequently interrupted meal breaks? yes, if employees' meals are interrupted to the extent that meal period is predominately for the benefit of the employer, the employees should be paid for the full 30-minutes.

other breaks

rest periods of short duration, generally running from 5 minutes to about 20 minutes, are common in industry. they promote the efficiency of the employee and are customarily paid for as work time. it is immaterial with respect to compensability of such breaks whether the employee drinks coffee, smokes, goes to the rest room, etc. see regulations 29 cfr 785.18.

example #11: many third shift nursing home employees who smoke prefer to take three ten-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. is it okay for them to substitute the smoke breaks for their meal break? no, the employee must be compensated for the smoke breaks.

unauthorized hours worked

employees must be paid for work "suffered or permitted" by the employer even if the employer does not specifically authorize the work. if the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked. see regulation 29 cfr 785.11.

example #13:

a residential care facility pays its nurses an hourly rate. sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients' charts. this results in the nurses working overtime. the director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. is this correct? no. the nurses must be paid time-and-one-half for all flsa overtime hours worked.

------------

i can assure you, the feds take this very seriously.

i reported my facility when my manager told the staff that they could no longer charge for a missed lunch break if they had taken time here and there during their shift (i.e. going to the cafeteria for coffee, sitting down for a few minutes, smoke breaks, eating a fast 15 minute "lunch", etc), stating that all of these added up to 30 minutes total, and therefore constituted a "lunch break".

when i called, i was simply looking for clarification because what she said seemed wrong. the man i spoke with got soooo fired up over this; he demanded to know where i worked and quoted me the law as it applied to the hospital. the hospital administration got a friendly call the next day from the feds reminding them of the law.

he never took my name, btw. it was completely anonymous.

EmmaG, RN · Feb 17, 2008

Heh... not getting a break is one thing, but how about being interrupted during a meal break when you are OFF THE CLOCK?!

By Federal law, you must be paid for that time. (see above)

Unless they are challenged, employers can (and will) continue to do this.

Valerie Salva, BSN, RN · Feb 17, 2008

i'm not a volunteer.
from my link above:
non-exempt employees must be compensated for any time during which they perform activities that benefit the employer.
http://www.dol.gov/elaws/esa/flsa/otcalc/i2.asp
http://www.dol.gov/elaws/esa/flsa/otcalc/doc7j.asp
http://www.dol.gov/esa/regs/compliance/whd/whdfs54.pdf
more:
http://www.dol.gov/esa/regs/compliance/whd/whdfs53.pdf
meal breaks
bona-fide meal periods (typically 30 minutes or more) are not work time, and an employer does not have to pay for them. however, the employees must be completely relieved from duty. when choosing to automatically deduct 30-minutes per shift, the employer must ensure that the employees are receiving the full meal break. see regulations 29 cfr 785.19.
example #9:
a skilled nursing facility automatically deducts one-half hour for meal breaks each shift. upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. does this practice comply with the flsa? yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.
example #10:
an hourly paid registered nurse works at a nursing home which allows a 30-minute meal break. residents frequently interrupt her meal break with requests for assistance. must she be paid for these frequently interrupted meal breaks? yes, if employees' meals are interrupted to the extent that meal period is predominately for the benefit of the employer, the employees should be paid for the full 30-minutes.
other breaks
rest periods of short duration, generally running from 5 minutes to about 20 minutes, are common in industry. they promote the efficiency of the employee and are customarily paid for as work time. it is immaterial with respect to compensability of such breaks whether the employee drinks coffee, smokes, goes to the rest room, etc. see regulations 29 cfr 785.18.
example #11: many third shift nursing home employees who smoke prefer to take three ten-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. is it okay for them to substitute the smoke breaks for their meal break? no, the employee must be compensated for the smoke breaks.
unauthorized hours worked
employees must be paid for work "suffered or permitted" by the employer even if the employer does not specifically authorize the work. if the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked. see regulation 29 cfr 785.11.
example #13:
a residential care facility pays its nurses an hourly rate. sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients' charts. this results in the nurses working overtime. the director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. is this correct? no. the nurses must be paid time-and-one-half for all flsa overtime hours worked.
------------
i can assure you, the feds take this very seriously.
i reported my facility when my manager told the staff that they could no longer charge for a missed lunch break if they had taken time here and there during their shift (i.e. going to the cafeteria for coffee, sitting down for a few minutes, smoke breaks, eating a fast 15 minute "lunch", etc), stating that all of these added up to 30 minutes total, and therefore constituted a "lunch break".
when i called, i was simply looking for clarification because what she said seemed wrong. the man i spoke with got soooo fired up over this; he demanded to know where i worked and quoted me the law as it applied to the hospital. the hospital administration got a friendly call the next day from the feds reminding them of the law.
he never took my name, btw. it was completely anonymous.

thanks for this post. i am so glad you took a stand and that the man you spoke to about the situation actually cared that you were not getting paid for missed breaks. there is hope afterall.

EmmaG, RN · Feb 17, 2008

Wal-Mart Stores Inc. will pay more than $33 million in back wages to thousands of employees after turning itself in to the Labor Department for paying too little in overtime over the past five years, according to an agreement announced Thursday by the U.S. Labor Department.

This is in addition to the millions awarded by Federal juries in lawsuits against the company citing their breach of Federal and state labor laws.

The WalMart cases involved *only* 87,000 workers nationwide. Imagine what would happen if every nurse demanded retroactive overtime pay for actual hours worked?

Valerie Salva, BSN, RN · Feb 17, 2008

This is in addition to the millions awarded by Federal juries in lawsuits against the company citing their breach of Federal and state labor laws.
The WalMart cases involved *only* 87,000 workers nationwide. Imagine what would happen if every nurse demanded retroactive overtime pay for actual hours worked?

I imagine the pay-out might be in the billions, or at least hundreds of millions.

EmmaG, RN · Feb 17, 2008

Thanks for this post. I am so glad you took a stand and that the man you spoke to about the situation actually cared that you were not getting paid for missed breaks. There is hope afterall.

Only if employees stand firm and refuse to enable their employers to break the law.

The DOL agent I spoke with wasn't being sympathetic, he was enforcing the law. He also made it a point to tell me that unless employees assert their rights under the law, these companies will continue to get away with these practices.

EmmaG, RN · Feb 17, 2008

I imagine the pay-out might be in the billions, or at least hundreds of millions.

A conservative estimate.

I don't know of any nurse (myself included, back in the day) who hasn't worked 'off the clock' at least some point. As a new nurse many many years ago, I was intimidated by management regarding this issue; I've since wised up and refuse to work for free. However, I still see it happen every day, everywhere I work. The number of uncompensated hours worked has to be astronomical...

Valerie Salva, BSN, RN · Feb 17, 2008

I too, worked off the clock as an intimidated new nurse.

Now, there is no way in hell I'd ever consider it. I regularly encourage co-workers to insist on being paid for missed breaks.

CocoaGirl · Feb 17, 2008

The biggest issue at the outpatient dialysis unit where I'm employeed is that we are not allowed to clock in until 15mins prior to starting of the shift, which does not leave adequate time to get the dialysis machines ready before the patients are due to start treatment. Now employees are coming in & working off the clock to ensure they are ready to start the daily treatments. Then they will clock in at the allowed time & management is fully aware of this practice. Employees are afraid to say anything because if they do it could show up on annual performance evaluations (which affects raises). This is just wrong, but the area manager, who has no health care background, feels that only 1/2 hr is needed to get started in the morning. It is totally ridiculous!!

EmmaG, RN · Feb 17, 2008

It is totally ridiculous!!

No, it's illegal.

RN4NICU, LPN, LVN · Feb 17, 2008

No, it's illegal.

Exactly. And the laws are only enforced if it is reported to the DOL. They can't help employees and hold employers accountable to the law if they don't know the laws are being broken.