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!   


Making Employees Work Extended Overtime Hours May Be Imprudent and Costly, But Could Be Legal

Everyone knows that exempt employees—those who aren’t eligible for overtime pay such as executives and management—can be made to work 24/7/365.

What about nonexempt employees—those who do earn overtime wages? Can you make them work 9, 10, 12, or more hours in a day?

In many states--yes, you can force most adult employees to do just that. You just have to pay them for it (and potentially provide periodic meal or rest periods as required). Child labor laws generally regulate the number of hours children can work per day and workers in some regulated industries (truck drivers and airline pilots for example), may have maximum shift lengths. Collective Bargaining Agreements may also limit the hours unionized employees can be scheduled to work. But for many employees in the private sector, such restrictions on their hours worked do not apply.

Of course, hourly employees must receive their base hourly wage for all hours worked, plus regular overtime pay (time-and-one-half their regular hourly wage) for hours worked over 40 in a work week. In a number of states, additional premium pay may apply. For example, in California, if someone works more than 8, but up to 12, hours in a day, he or she earns daily overtime at time-and-half for hours 9, 10, 11, and 12, and daily double time for any additional hours worked in that day. New York has a “spread of hours” rule, which requires that employees with work days longer than 10 hours (i.e. more than 10 hours from start time to finish time even if there is a long mid-day break) receive an additional hour’s pay at minimum wage. But, that wage requirement, like the California daily overtime pay rule, does not dictate a maximum number of hours employees can work per day or per week.

Federal law, as set out in the Fair Labor Standards Act says nothing about how many hours someone can work in a day or at a time. In fact, under the FLSA, the only limit on how many hours an employee can work in a week is the number of hours in a week. To work an employee more than 168 hours in a week requires breaking the laws of physics, not the FLSA. The result may be different under state law, however. Some states, such as New York, Illinois and Wisconsin, have laws putting a cap on the number of days certain employees can work per week (often called “one-day-rest-in-seven” laws). But, even those laws do not prohibit employers from scheduling long days during the six days those employees work.

In many states, if an employer’s wallet is deep enough, the need great enough, and the employee is not covered by a wage order dictating otherwise for the employee’s position (such as for individuals in certain health care positions, mining or other safety-sensitive positions), or by other regulations, an employee can be required to work all day and night long—as long as the employee is properly compensated under the law (and meal or other rest-break laws are complied with). While it is probably not advisable, it may be permissible.

Keep in mind as well, however that, even if permissible, some states may have laws or regulations making long hour requirements difficult to enforce. For example, in California, employees cannot be disciplined or terminated for refusing to work more than 72 hours in a week—even though the law does not limit the work-week to 72 hours.

Thus, although it may not be prudent to do so, and morale concerns may dictate otherwise, where an employee’s hours are not otherwise limited by applicable regulations or otherwise, an employer can require long work days (and long weeks) so long as the company pays its employees appropriately, under federal and state wage payment law, and provides any required breaks (which generally are not as numerous as most employees believe).

However, if the issue is just “can the company mandate overtime hours?” For the most part, the answer is “yes.”