QUESTION
In our Corporate Policy manual it states" we provide a 30 min. unpaid lunch break... Does the word "provide" indicate a mandate or option?
Asked on Aug 20th, 2012 on Labor and Employment - Florida
More details to this question:
I am the Executive Director of one of our branch centers. We are a 100 bed residential substance abuse program. Our HR department has a "policy" of requiring our non-exempt staff members of clocking out then back in for a half hour lunch break for all shifts over 6 hours. We do not operate in any of the states that have a law requiring a meal break. We operate in Florida, Goerga, Alabama, and Missouri. They have asked that Directors to discipline any employee who fails to do so.
Our Corporate policy states" we PROVIDE a 30 min. Unpaid Lunch break for all non-exempt employees who work a shift longer that 6 hours.
1. The word "provide" indicates, I believe, an option. My argument is this. We also "Provide" health insurance benefits but of course we do not require participation. Believing that this is an option, as currently stated, I do not wish to "write up" a staff member for non-compliance of a corporate policy. Am I correct in my assumption that wording implies an option?
1 ANSWER
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I think you're missing the point here. The law requires an employer to pay overtime to hourly and non-exempt employees who work more than 40 hours in any work week. Most employers schedule work in a way which includes "nonwork" time such as mandatory breaks and lunch breaks. That is, an 8 to 5 work day includes a total of 9 hours, but may include only 8 hours of "time worked" for wage and hour law purposes. Such a schedule may include 30 minutes unpaid lunch break and two unpaid 15 min. breaks during the day, for instance. If an employee has the "option" of making the personal decision to work through lunch and break times, that results in 5 hours per week of overtime which the employer must pay. Therefore, many employers require employees to take the unpaid break time. Doing so also lowers fatigue and can improve the safety of the workplace.
The "bottom line" is that the employer is entitled to set the break policy, and can require employees to take the breaks. It doesn't matter whether the policy uses the word "provide," the word "requires" or some other term. The effect is the same; the employer can insist the employee take the break and impose discipline if they do not since working through the break would constitute unauthorized overtime.
Answered on Aug 21st, 2012 at 8:48 AM