How to come badly unstuck with the Department of Labor – Staffing & HR

Written by: Andrew Gale - Orange County - Small Business Attorney

How to come badly unstuck with the Department of Labor when you think you are doing right by your employees.

As a small business owner, well micro-business really as we only have 5 employees including the owners, I feel the need to keep on top of rules and regulations.

I have always been of the mindset of ‘start as you mean to go on.’ I have found that if you always think you’ll get it sorted later you will come unstuck, either because you now have to retroactively tell employees that what they were doing they can’t do anymore, or worse, you find you are outside of the law and have been for some time.

So as soon as we got our first employee I decided to make sure we were compliant from the get-go. Imagine my surprise when I read on the United States Department of Labor site that I don’t have to give any breaks! Apparently the Fair Labor Standards Act (FLSA) states ‘they are not required by the FLSA.’

Really? Well, not quite. Here’s what this page has to say:

Even though they are not required by the FLSA, if you permit your employees to take breaks, they must be counted as hours worked. This includes short periods the employees are allowed to spend away from the work site for any reason.

For example:

• smoke breaks,
• restroom breaks,
• personal telephone calls or visits, or
• to get coffee or soft drinks, etc.

Note, however, that you need not count unauthorized extensions of authorized breaks as hours worked when you have expressly and unambiguously advised the employee that the break may only last for a specific length of time and that any extension of the break is contrary to your rules and will be punished.

Sounds a bit mutually exclusive. So if they are not required and I have it in writing in my employee’s handbook that they are not allowed, under any circumstances, to leave their station from the moment they clock in till the end of the day when they clock out then I’m covered? Even if it means they wet themselves because there is no bathroom break. But how many employees are you going to manage to keep with that policy? Not a lot.

What if they clock out for a bathroom break and then clock back in again, is that really considered a ‘break?’ they weren’t on company time and it was their choice to take the break.

So you realize you need breaks, even if it’s just one for lunch. You put in the employee handbook that breaks are allowed, but how do you track them? How long is long enough for a break? Do I need to give more than one break? Can I get an employee to clock out and in again but just count the time between clocking in and out as a break and pay them for it but use it to track the time taken?

It’s this kind of fuzzy thinking that can get you in serious trouble.

This is where it is really smart to get a lawyer or an HR company involved in setting up your employee handbook. One sentence is written wrongly and it could end up costing you millions of dollars.

When I read this article http://www.msn.com/en-us/money/companies/company-ordered-to-pay-back-wages-for-bathroom-breaks/ar-AAgol9a?ocid=ansmsnmoney11 it seems pretty obvious to me that the owner of Progressive Business Publications thought he was being more than fair by letting his employees work for as long or as little as they liked. As well as take a break for as long or as little as they liked.

Want to take a bathroom break? Go ahead, clock out, then you can take as long as you like. But when I then re-read what the FLSA has to say about breaks it also seems to me that this policy was initiated without any thought to the law or the consequences.

Basically, he didn’t say they couldn’t take a break, in fact, they could take a break whenever they liked as long as they clocked in and out, but, as it says on the FLSA site if you permit your employees to take breaks…

So I am going to watch this case with interest, will it be appealed? Will the company have to pay?

In any case, whatever happens, I want to make sure my business is never put in this position, it’s why, as small as we are, I have a lawyer and an HR company to make sure that not only is my company handbook correct and up to date but that legally all my bases are covered.

Contributed by Sonja Barrie. Sonja is a guest blogger, a small business owner with interests in finance, marketing, and the law.