Employers Are Required to Pay for ‘On-Duty’ Breaks

Q. Our company runs a 24-hour security-monitoring center with at least two people on duty at all times. We want to encourage employees to remain in the building to eat their meals in case an emergency arises. The company provides a separate lunchroom.

Would it be legal to establish a policy paying employees for meals if they remain in the building but not paying for meals when they leave the building?

--E.M., Orange

A. An employer is required to pay its nonexempt employees for all hours “worked.” Under federal law and state law as interpreted by the Division of Labor Standards Enforcement, a meal period is considered hours “worked” if the employee is not free to leave the employer’s premises.

Meal periods of at least 30 minutes are not considered hours worked if the employee is relieved of all duties and is free to leave the employer’s premises.

Your proposed policy of not paying for meal periods for employees who leave the building appears to be lawful as long as those employees are given a duty-free meal period of at least 30 minutes.

However, if applied to those who remain on the premises, the proposed policy might violate another rule that generally prohibits California employers from employing any person for a work period of more than five hours without a duty-free meal period of at least 30 minutes. Those who must eat meals on company premises are considered “on-duty.”

Under this rule, an on-duty meal period is permitted only when:

* The employee’s total workday is not more than six hours and the employee has agreed to waive the meal period.

* The nature of the work prevents the employee from being relieved of all duty, and the employee has agreed in writing to an on-the-job paid meal period and is paid for the time.

* The employee works a shift in excess of eight hours, is employed in the health-care industry, and has entered into a voluntary written agreement waiving his or her right to a second meal period.

--Deborah C. Saxe, Management attorney, Heller Ehrman White & McAuliffe

Company Must Reimburse Expenses

Q. My employer requires us to submit business-related expenses within 30 days after they occur. If expenses are submitted after that, they are not paid.

Is this legal?

--R.T., Inglewood

A. Employers are required by law to reimburse employees for all business-related expenses.

I can certainly understand the desire of employers to encourage employees to promptly submit their expenses. They would like current expenses on their current record-keeping books.

However, if an employer is required to pay these expenses, then it must pay them regardless of when they are submitted. It’s similar to the dilemma employers face regarding overtime. If they restrict the amount of overtime but an employee works it anyway, with or without the employer’s consent, the employer must pay overtime compensation. The employer does not have the option of not paying it.

The only option might be to discipline that employee with a warning or even termination for failure to follow instructions. It appears that your employer’s policy is not legal. It also is not reasonable to expect submission of expenses within 30 days. After all, if you incur an expense on the first day of the month, you might not receive a credit card statement regarding the expense until 35 days later.

It is also illegal for the employer to discipline or terminate you if you complain about this practice.

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

Exempt Workers Can Be Docked

Q. Is the University of California system allowed to apply different rules than private employers for exempt employees? I am an exempt employee in the UC system. I was under the impression that if you are salaried, you get paid for eight hours of work, even if you are only on the job for four hours that day. But when I work fewer than eight hours, I am required to use sick time to cover the difference. I don’t receive overtime when I work extra hours. Is this right?

--M.R., Los Angeles

A. Your employer’s practice is legal. Under the federal Fair Labor Standards Act, which is applicable to the UC system, employees are not exempt from overtime premiums unless they are paid on a true salary basis.

To qualify for the exemption, salaried employees must be paid their full salaries without regard to the quantity or quality of their work. Thus, an employer cannot legally dock a salaried employee for coming in late or leaving early.

There are several exceptions to this rule. One is that an employer can legally charge a partial day’s absence against an employee’s vacation or sick leave benefits.

Employees cannot be docked, however, once they have exhausted all remaining vacation and sick pay. At that point, the exempt employees must be paid their full salaries even if they are absent for part of a work day.

--Joseph L. Paller Jr., Union, employee attorney, Gilbert & Sackman