Archive for August, 2010


The Wage Hour Division of the Department of Labor is getting a bit more aggressive.  Among other things, DOL has hired a bunch of new investigators and implemented a program they call “Plan, Prevent and Protect”  ( and another program the DOL calls “We Can Help” (

The New York Times did an interesting article on an initial step in the WHD’s more aggressive stance.  Seems the WHD is, according to the Times, targeting hospitals and nursing homes looking for Fair Labor Standards Act violations.  See

According to the Times, hospitals in particular are being singled out for misclassifying employees as supervisors and for failing to pay employees who work overtime or through their meal periods. We will leave the misclassification issue for another day, but let’s take a second and talk about those meal periods.

The regulations implementing the FLSA state:

(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. 29 CFR § 785.19

So generally speaking, if you don’t want to pay your non-exempt employees for lunch, the meal break has to be at least 30 minutes long and the employee has to be completely relieved of all duties.  That’s got to be hard to do for some employees, and I imagine nurses are among the most difficult to deal with.  How do you handle this if you are a manager?  Here is what you can’t do: you can’t tell the employee to not work during meal breaks and then refuse to pay them when they do. 29 CFR § 785.13 says: “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

That means that as a manager you need to make sure that the employee has uninterrupted time to eat lunch or you have to pay your employees when they work during lunch.  How do you make sure that an employee has uninterrupted time to eat?  You can start by not letting employees eat at their work station.  Send them to the break room.  And make sure employees know that when an emergency does arise and they have to work during lunch that they account for that time so they are properly paid.  In the long run, that is a lot less expensive for you than paying the liquidated damages and attorney fees that come with a wage hour suit.


A while back I wrote a post about the break time provisions for expressing breast milk in the new health care bill.  You can see that post at  Friday the Department of Labor published its Fact Sheet #73, outlining “general information on the break time requirement for nursing mothers . .  . . “  According to the Fact Sheet, “Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.  The frequency of breaks needed to express milk as well as the duration of each break will likely vary.”  Breaks must be provided for up to 1 year after the birth of the child.  The Fact Sheet goes on to state that the employee is entitled to a room to express milk that is “functional as a space for expressing breast milk.”  A bathroom, even if private, is not, according to the Fact Sheet, a permissible location under the Act.   In addition, if the space is not dedicated for use to express milk, the space must be “available when needed” to meet the requirements of the Act. 

The requirement to provide break time only applies to non-exempt employees and the employee does not have to be paid for her time spent expressing as long as she is completely free from duty while expressing.  But if the employee uses her normal paid break time as time to express milk (say for example you give all non-exempt employees 2 ten minute paid breaks, one in the morning and one in the afternoon) then the time spent expressing milk must be paid like it is for every one else.  If you have less than 50 employees, you don’t have to provide breaks if doing so would cause you an undue hardship.  For purposes of this statute, undue hardship means “looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure” of that employer’s business.

Before we leave, yes, the Fact Sheet says that the requirement to provide breaks only applies to “employees who are not exempt from the FLSA’s overtime pay requirements . . . .”  But in my opinion, denying an exempt employee time to express breast milk isn’t a very good idea.

Finally, if you work in a state that provides more rights to employees, the state law will still apply.

You can see the fact sheet at  If you have any questions you can find my contact information at


A short time ago the Senate voted 63-37 in favor or confirming Elena Kagan as a Justice of the United States Supreme Court.  Ms. Kagan when sworn in will replace outgoing Justice John Paul Stevens. 5 Republicans, 56 Democrats and 2 Independent Senators voted in favor of Ms. Kagan’s nomination.  Ms. Kagan is not likely to change the ideological make-up of the court when it comes to employment matters.  Justice Stevens was considered a liberal jurist and Ms. Kagan is likely to be the same.  A couple of interesting side bars, this is of course the first time in the history of the Court that three sitting Justices are women and for the first time in the history of the Court, there is no Justice who identifies him or herself as a Protestant on the Court.  You can read more about the Senate vote on  Ms. Kagan at the New York Times: and more about the history and demographics of the Court at


The President spoke to the Executive Council Meeting of the AFL-CIO today.  The speech was what one would expect when the President talks to a room full of union representatives.  He said things like, we have made progress but we still have a long way to go.   The President stated that he intended to build an “Economy that works for everybody not just a privileged few.”  In the middle of the speech and somewhat in passing, the President stated that he intended to continue to “fight to pass the Employee Free Choice Act.”  And in answer to the one question that the President took, the President quoted FDR saying “If I was a worker in a factory and I wanted to improve my life, I would join a union.”  In short the President reaffirmed to the very sympathetic crowd that he intended to continue to use his executive powers to do such things as appoint members of Administrative Agencies like the NLRB and implement executive orders, and his influence with Congress to promote a pro labor agenda.   

I’m not a reporter so I am not going to try to report exactly what the President said.  If you would like, you can read the text of his speech at     In the mean time, we will keep an eye on the EFCA.