Employers must know the rules for different kinds of work breaks

The Fair Labor Standards Act (FLSA) does not require employees (other than minors) receive any breaks, either paid or unpaid.  FLSA regulations outline only when breaks must be paid if they are offered at the employer’s discretion.

There is one exception with the implementation of the new federal Patient Protection & Affordable Care Act.  Under the FLSA, employers must now must provide nonexempt mothers with the time and space to express breast milk for one year after the birth of a child.  Few employers limit this right to nonexempt employees only, and many states have laws that that are stricter than the federal law.

The regulations divide breaks into two categories:  rest breaks and meal breaks.  In terms of payment, different rules apply depending on the type of break.

·         Rest breaks:  Regulations stipulate that an employer must pay workers if the period is 20 minutes or less. Breaks lasting five to 20 minutes are common and promote efficiency.

·         Meal breaks:  Regulations stipulate that ordinarily an employer must pay workers if the break is less than 30 minutes.  The regulations leave open the possibility that shorter meal periods may be noncompensable in special circumstances.  However, the burden is on the employer to prove that special circumstances apply for justifying the shorter break.

Keep in mind the regulations do not always fit today’s work place.  Sometimes it is hard to tell whether a break is to rest or to consume a meal.

For this reason it is not surprising that some U.S. Department of Labor (DOL) investigators, as a matter of enforcement, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes.  By doing this, they don’t have to engage in a break-by-break analysis.

In such cases, the DOL’s position is inconsistent with its own regulations and case law.  But a 30-minute rule does avoid litigation over that issue.

Even if a meal break is 30 minutes it does not mean it automatically occurs without pay.  The employer must consider the length of the break and whether the employee is free from work.  If the employer requires the employee to stay in his or her work area, they may have to pay the employee, even if the break is 30 minutes or more.  Similarly, if the employer asks an employee to do any work during the break, the employee may have to be compensated for the entire break.

Source:   SHRM.org

 

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Debbie Strahle, Partnership Manager

Case study: Fair Labor Standards Act violation proves costly for business owner

It is important to train supervisors and managers so they know the minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA) and when to report employee concerns and complaints.  This is the key to avoiding costly fines for the company AND its executives.

Nearly all employers are subject to the requirements of the FLSA, and the potential penalties for violations can be costly.  Case in point is a wage-and-hour lawsuit against Gristede’s Foods, Inc. in which the company’s owner has been held personally liable for payments to employees in the case.

The New York supermarket conglomerate employed approximately 1,700 employees.  In 2004, a group of Gristede’s employees filed a class/collective action lawsuit alleging that the company failed to pay overtime under the FLSA.  The employees prevailed, and the parties entered into a multi-million-dollar settlement.

When Gristede defaulted on its payment obligations under the settlement agreement, the employees asked the U.S. District Court for the Southern District of New York to hold John Catsimatidis, the long-time owner, chairman and CEO of the company, personally liable for the payments.  The district court granted the employees’ request.

Catsimatidis appealed to the 2nd U.S. Circuit Court of Appeals, but the appellate court upheld the lower court’s decision, ruling that Catsimatidis was an employer under the FLSA and could be held personally liable for violations of the Act.

The 2nd Circuit Court made this decision regardless of the fact that Catsimatidis managed employees at a very high level.  For example, he wasn’t typically involved in the day-to-day operations of individual supermarkets.  He didn’t hire or fire most employees or set specific wages or schedules, and he had only limited interaction with the managers who handled those types of decisions.  It also didn’t matter that Catsmatidis wasn’t accused of making decisions that violated the FLSA.

Rather, the court concluded that Catsimatidis was an employer and he was active in running the company.  This included having contact with individual stores, employees, vendors, and customers and supervision of certain managerial personnel such as the chief financial officer and the chief operating officer.  The ruling concluded that this gave him ultimate responsibility for employees’ wages and signed paychecks.

In early December 2013, Catsimatidis petitioned the U.S. Supreme Court to hear the case and overturn this ruling of personal liability.  At this time, it is not known if the high court will hear the case.

With court decisions like these, corporate officers should be more motivated than ever to ensure that their companies and agencies are in compliance with the FLSA’s requirements.  Now is a good time to review and update your policies to ensure that employees understand their obligation to accurately report all time worked.  Contact BCN Services if you need to consult on any FLSA matters.

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Sue Kester, HR Manager

Individual Insurance and the Affordable Care Act: Part 2

We are back with Part 2 of BCN’s ongoing series about the Individual Health Insurance Market, also called IHIM.  The IHIM is in a state of constant flux and following is an update and some solutions regarding the individual market.

  1. BCN can help your organization or employees navigate this constantly changing landscape.  We have staff that is certified as Individual Market Experts.  We can assist any current client or employee with this process.
  2. Healthcare.gov, the national health care exchange website, appears to be up and working, although we are getting varying reports regarding ease of use, connectivity and being able to complete the process.  Some people are having no problems, while others are still frustrated with the technology.
  3. The deadline for signing up to receive coverage effective Jan. 1, 2014 has been pushed back from Dec. 15, 2013 to Dec. 23, 2013.
  4. Consumers and insurers are being told that any consumer that has paid by Dec. 31 2013 is guaranteed coverage starting Jan. 1, 2014.

There are still strong concerns surrounding the program.  They range from difficulty accessing the program, security issues, network issues (thinking your doctor is in the network, but they are not), and coverage issues (are you in the program or not), etc.

If you or your employees are feeling overwhelmed or just need someone to discuss the available options, please contact the BCN call center at 1-800-891-9911.

One option that is not getting a lot of attention is that individuals can access an insurance carrier’s private health care exchanges and, in many cases, this has been proven to be a more user friendly experience for insurance sign-up.  This is one of the options the BCN Individual Marketplace experts will evaluate for employees to see if it is an option based on their income, needs and available carrier networks.

BCN will continue to keep you updated on the most important issues facing your organization.

 

 

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Rick Dyer, Vice President of Sales

Employers must accommodate religious observance requests

During this holiday season, your company may get requests from employees for time off that are not traditionally designated as a holiday by most companies. How should those requests be handled, and how do you accommodate these requests due to a religious observance?

In most cases, you would need to seriously consider an employee’s time off request when it is for a religious holiday. Under Title VII’s protection of an employee’s religion, employers are obligated to provide religious accommodations similar to the American’s with Disabilities Act reasonable accommodation requests. Religious accommodations often present themselves in the form of a request for time off for religious observances which do not conform to the employer’s holiday schedule. Unless this would be an undue hardship, an employer should accommodate such requests in a consistent and non-discriminatory fashion.

Employees should be able to use relevant paid time off benefits consistent with company policies to observe holidays. If an employee has exhausted all paid time off benefits, they should be given unpaid time off to observe a religious holiday. If the employer allows flexible work schedules or make-up time, employees requesting time off to observe a religious holiday should be afforded these same options.

If the accommodation would cause an undue hardship for your company, the accommodation does not have to be made. According to the EEOC, “an employer can show undue hardship if accommodating an employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.”

If you cannot accommodate the request, the employee should be notified as soon as possible and you should provide the hardship rationale supporting the denial.

Employers unsure of whether an accommodation creates undue hardship sould contact BCN’s Human Resources Customer Service Center to discuss the situation before denying this request.

As always, if you have a situation that needs immediate attention, contact BCN’s Human Resources Customer Service Center (hr@bcnservices.com or (800) 891-9911 ext. 4) and we will work diligently to help you with all your employee relations issues.

BCN wishes you a prosperous, happy and healthy holiday season!

 

 

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Kate Douglass, Senior, HR Generalist