Employer Should Compensate for ‘On-Duty’ Mealtime

Q: I work in a skilled nursing facility on the 11-7 shift and am the only licensed nurse on duty. The regulatory board for skilled nursing facilities states there must be a licensed nurse on duty 24 hours a day.

I am required to “clock out” for half an hour to satisfy the labor code for mealtime. I stay in the building and am available for emergencies. However, I am concerned about my liability should a legal problem arise while I’m “off the clock” and could not prove I responded to an emergency.

As I see it, I’m breaking the law and not complying with the 24-hour-a-day licensed nurse rule. Also, the labor code insists workers be relieved of their duties while off the clock. What do you advise about this situation?

--J.E., Newport Beach

A: You should be concerned. Anything that might affect your license or personal liability must be addressed.

You might want to call the regulatory board overseeing the nursing facility and simply ask them about the “on-duty” requirements. It may be that they are more concerned that an actual nurse be responsible for the patients regardless of any violation of wage and hour rules.

Even though your employer may be violating the “clocking out” rules, they still may be in compliance with the on-duty rules if you, in fact, are fulfilling those responsibilities. Does the employer require you to stay in the building and be available for emergencies during your lunch break, or is that simply your own decision?

Your claim for compensation during your lunch break would be even more justifiable if the employer requires you to continue responsibilities during that time. Evaluate how often your break has been interrupted. Are you able to postpone non-emergency requests for help until after your break? The more your break is interrupted by emergencies, the better your argument will be.

According to California law, an employer can actually have an employee remain on duty during their meal period if they are paid for that time and if the employee can show the necessity for it. There is not an absolute requirement, especially in the medical field, that an employee be allowed to leave the facilities during a lunch break. The key is that you need to be compensated for your time if you are on duty. It appears that paying you for your meal break is the most reasonable thing for the employer to do. It would certainly be very burdensome for them to have another nurse replace you for the half-hour meal period.

Consider informing the employer of their requirement to pay you for your lunch break so that you can remain technically “on duty.” If they fire you for complaining about failure to pay you legally required compensation, you would have wrongful termination rights against them.

--Don D. Sessions, Employee rights attorney, Mission Viejo

Some Sales Jobs Exempt From Pay for Meetings

Q: I work for a department store in the custom decorating division. When I was hired in January, 1990, it was made clear to me that the job was straight commission except for $7.50 per hour for training, or for sales meetings longer than one hour.

In 1993, the company arbitrarily changed the pay for meetings. Under a complicated formula for computing the pay rate, they don’t pay us for meetings less than four hours, but the managers are required to keep the meetings under four hours.

How can this be legal? It doesn’t seem fair that they can take us out of the field for four hours (which, including travel time, essentially kills the whole day in terms of scheduling appointments) and not reimburse us for our time. It is impossible for us to make up this lost time, preventing us from making sales and earning commissions.

--J.K., La Mirada

A: Your employer’s current practice is legal. It appears from your description of your job that you would qualify as an “outside salesperson” under federal and state wage and hour laws. This is defined as a person who spends more than half of his or her working time away from the employer’s place of business selling or obtaining orders for products or services.

Although there is a requirement in both federal and state law that certain employees be paid for time spent in mandatory employer meetings, “outside salespersons,” among other employee classifications, are exempt from this law. As such, your employer can require you to attend meetings without paying you extra compensation.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine

Reasonable Job Changes Required for Disability

Q: I left work in July on medical leave. When I left, I was on probationary review because my performance wasn’t up to par, but there was a medical reason for that. My question is, how difficult is it to try to get my employer to modify the job to match the abilities I have now? The medical problem is covered by the Americans With Disabilities Act.

--T.B., Orange

A: Today, most employers with 15 or more employees must comply with the requirements of the Americans With Disabilities Act. To qualify for protection under the employment provisions of the act, an individual with a disability must be able to perform the “essential functions” of his or her job, either with or without reasonable accommodation.

You indicate that your medical problem is covered by the Americans With Disabilities Act. You will need to provide medical evidence from your doctor that indicates you can safely perform the “essential functions” of the job. The employer can also request a second or even a third opinion to help make the necessary determination.

The employer is required to make a “reasonable accommodation” to the physical or mental limitations of a qualified employee with a disability, unless the employer can demonstrate that the accommodation would impose either an “undue hardship” or create a health or safety issue for yourself or other employees.

--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group