meal periods - Horton Management Law

Does your company allow employees to work from home? Telecommuting can be a great fit for many workers (and their employers). But organizations should consider various implications before going in this direction.

Here, I’ll share 10 potential legal issues related to telecommuting. This isn’t meant to deter any business from using this model. It’s just designed to help you make an informed decision and take appropriate precautions.

1. Timekeeping

Most employers are required under the FLSA or state laws to keep accurate time records of their employees. This is especially true for non-exempt employees who may be eligible for overtime pay when they work over 40 hours per week (or another applicable threshold). Employers must be able to trust their employees working at home to report their time accurately and provide a mechanism for doing so.

2. Meal Periods

Some state laws, such as New York’s, impose mandatory meal period breaks during the workday. These may apply to employees working from home as well as those on the employer’s premises. If so, employers must ensure that their telecommuting employees take the required time off during the day.

3. Overtime

Many companies restrict the amount of overtime their employees work–usually as a cost-containment measure. This may be more difficult to control for telecommuting employees who are out of sight. Nonetheless, if non-exempt employees working from home exceed the applicable threshold, the employer must pay the overtime compensation.

4. Time Off

It can be a challenge to monitor and handle time off for on-site workers. This can sometimes become even more difficult when the employees don’t physically report to work. First, supervisors may not know whether an employee is actually working, so some employees may not use leave time even though they are not doing work when they normally should be. And the opposite can also raise issues. A telecommuter who takes a day off may feel compelled to perform some work while they’re supposed to be on vacation or sick leave. This may raise complications in tracking benefit time and hours worked.

5. Confidentiality

Telecommuting employees often have remote access to company information that on-site workers may not need. Or, at least, they usually have less direct supervision in their use of company data and property. Employers should consider measures to prevent employees from intentionally or accidentally taking or transferring their proprietary information to unauthorized third parties.

6. Security

Even if your employees don’t misuse company information, other nefarious third-parties may seek to do so. Remote data transfer between telecommuting employees and the company’s electronic systems may not be as secure as on-site access. This could be especially true when employees may access company information from outside their homes, such as through public Wi-Fi connections.

7. Discrimination

As with most workplace issues, consistency is important in permitting employees to telecommute. Inconsistent treatment, even if inadvertent, can give the appearance of unfair treatment. This may even give rise to discrimination claims. For example, although well-intended, a company that only allows women with young children to work from home, might be discriminating against male employees. Likewise, an organization that discourages older workers from working from home, but permits younger employees to do so (on the theory that they’re more “tech savvy”) could be engaging in age discrimination.

8. Disability Accommodations

The Americans with Disabilities Act and similar state laws require employers to make reasonable accommodations to qualified employees with disabilities. This could extend to the home workplace. Thus, under some circumstances, employers may need to modify employees’ homes to enable them to work there. At present, however, most employers would probably not be required to allow employees to work from home to accommodate a disability if they do not normally allow telecommuting. This could mean that allowing telecommuting in the first place opens employers to greater disability accommodation responsibilities.

9. Safety

Under OSHA, employers must keep their employees’ workplace reasonably safe. In addition, companies may become responsible, through their workers’ compensation insurance, for telecommuting employees’ injuries occurring in their own homes. As a result, it may be prudent (though not always practical or desirable) for an employer to inspect employees’ home workspaces.

10. Unions

Employees who work from home can still be in represented bargaining units. And unions vary in their approach to whether this is a good idea. Some unions would object to an employer allowing some employees to telecommute. Others may push for the option.

Telecommuting on the Rise

Like unions, employers have different ideas about how effective telecommuting can be. Some embrace it completely, and others reject it altogether. Others are in-between. But, whatever your take, telecommuting is increasingly popular.

A 2017 State of Telecommuting in the U.S. Employee Workforce Report indicates that 3.9 million U.S. employees work from home for at least half of their work time. This is 2.9% of the overall U.S workforce and a 115% increase since 2005.

In this digital era, many employees place tremendous value in having the flexibility to work remotely. Companies that want to attract those workers may need to modify their past approach to telecommuting. But, there remain many industries, such as manufacturing, hospitality, and construction, where much of the workforce must be physically present. Remember that the above issues also apply to traditional work arrangements as well!

The federal Fair Labor Standards Act does not require employers to give their employees time off for lunch, dinner, etc. However, many states impose such requirements. Here’s a helpful reminder about the New York meal period rules.

Standard New York Meal Period

Every person employed in or in connection with a factory must be allowed at least an hour for the “noon day meal.” If a factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must also be allowed an hour meal period in the middle of the shift.

Employees other than those employed in or in connection with a factory must be allowed at least 30 minutes for the “noon day meal” if they work a shift of at least 6 hours that includes the hours from 11:00 a.m. to 2:00 p.m.

If a non-factory employee works a shift of 6 or more hours that starts between 1:00 p.m. and 6:00 a.m., then they must be allowed a meal period of at least 45 minutes in the middle of the shift.

Additional Meal Period for All Employees

Any employee who works a shift that starts before 11:00 a.m. and ends after 7:00 p.m. must be allowed an additional meal period of at least 20 minutes between 5:00 and 7:00 p.m.

Exempt Employees Included

The New York meal period requirements apply to all employees, including those exempt from minimum wage and overtime.

One Employee Shift Exception

In most cases, employees must be completely relieved from duty during the applicable meal periods. Accordingly, eating while working at one’s desk does not count as taking a meal period. And the burden and obligation is on the employer to ensure that each employee receives the required meal period. Usually, the employee cannot consent to forego lunch.

However, in very limited situations where there is only one employee on duty, the New York Department of Labor may permit an employee to voluntarily agree to take their required meal period while still on duty. This is principally recognized in the retail context, where an employee may be able to sit and eat behind a sales counter largely uninterrupted for much of the meal period. Even in these situations, an employee must be permitted to have a completely uninterrupted meal period upon request.

Shorter Meal Periods Permitted

As an enforcement matter, the NYSDOL permits any meal period to be shortened to no less than 30 minutes if there is no indication of hardship to employees.

The DOL may allow shorter meal periods of not less than 20 minutes only in special or unusual cases. This requires an investigation by the DOL and issuance of a special permit.

A New York Meal Period May Be Unpaid

The New York meal period law only requires that employees be relieved of duty to relax and eat. It does not require the employer to pay employees during that time. However, if, such as the case of the one employee shift exception, the employee is not fully relieved from duty, they must be paid for the time even if they eat while working.

Notably, the New York meal period law does not require employers to give employees any further breaks during their shift. However, if employees take breaks of less than 20 minutes during their shift, that break time must be included as hours worked and paid accordingly.

Most employers should require hourly employees to clock in and out (by some method or another) before and after unpaid meal periods, but not around breaks. In all cases, it is the employer’s obligation to have accurate time records showing actual time worked, especially for non-exempt employees. In the event of an audit by the NYSDOL, it is also important to specifically be able to show that employee receive the required New York meal periods.

Check out these other articles about important New York-specific employee requirements:

Are You Complying with New York Wage Notice Requirements?

New York Paid Family Leave Regulations Now Final

Hiring Your First Employee in New York

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