Under New York Law, Are You Required to Pay Your Employees for Their Breaks or Not?

As noted in our recent blog, Under Federal Law, Are You Required to Pay Your Employees for Their Breaks or Not?, various states and localities may have their own break laws and regulations that could apply to your business.  Those laws could cause even more confusion with as to if, whether to pay employees for breaks and/or meal time.  New York is among the states with specific laws on breaks.  

If you are an employer in New York, New York Labor Law (NYLL)generally requires you to provide your employees with at least 30 minutes of an unpaid, uninterrupted meal break during shifts of more than 6 hours.  Specifically, employees are generally permitted to take at least 30 minutes for lunch between 11:00AM to 2:00PM if they work a shift of more than 6 hours, which extends over that time period.  Every person employed for a shift starting before 11:00AM and continuing after 7:00PM is generally permitted an additional 20-minute unpaid meal break between 5:00PM and 7:00PM.  Also, every person employed for a period or shift of more than 6 hours starting between the hours of 1:00PM and 6:00AM is generally permitted at least 45 minutes for a meal period at a time midway between the beginning and end of their shift. 

There are, however, certain exceptions to the above requirements.  For instance, factory employees may be entitled to longer break times.  There are also some instances where only one person is on duty or is the only person performing a specific job duty. In those situations it may be acceptable for the employee to eat on the job without being relieved (in which case the employee needs to be paid for that time).  The New York Department of Labor will generally accept these special situations as compliance with the break laws presuming the employees voluntarily consent to the arrangements.  However, an uninterrupted meal period must be afforded to every employee who requests it from their employer.  If you as the employer have an exceptional situation, it is generally prudent to get the employee’s agreement in writing.

Although the FLSA applies only to non-exempt employees when it comes to breaks, the NYLL does not distinguish between exempt/non-exempt employees.   The NYLL requires employers to provide meal breaks to every "person" in any establishment or occupation covered by the NYLL. 

Given that both Federal and state law addresses employee breaks, it is not surprising that there is so much confusion on this issue.  State law does not necessarily mimic federal law, and the various laws create differences in the length of breaks as well an employer’s general requirements to provide breaks and employees’ entitlement to such breaks.  To ensure compliance with the various wage and hour laws in New York, you should not only offer the required breaks to your employees but also you should require your employees (at least the non-exempt ones) to clock in and out for any breaks longer than 20 minutes so that you: (a) have a record of providing the required breaks, and (b) have a basis not to pay your non-exempt employees for their non-working break time.  It may also be wise to talk to your employment lawyer to avoid paying for your confusion down the road!