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no compensation for lunches still!

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  • no compensation for lunches still!

    Thank you for the advice cbg. Sorry for the double post and here is an edited version with paragraghs & white space. I hope it is easier to read.

    This one is for you Phil, (although anyone who feels they can offer, please respond as well): you had asked me to update you on my progress with my issue. I took you literally! Anyway, to recap:

    Last spring, I had contributed a thread regarding my delimma of being a School Nurse and not getting compensation for being required to remain on the premises and on-call in case of emergencies during my lunch period.
    We [school nurses] are in the same contract and same salary scale as teachers and the teachers get additional compensation for working during their lunch if they decide to. I understand that we can agree to remain on the premises and on-call but that even if we agree it does not exclude the employer from compensating us for that time due to the fact that it is considered worked hours.

    Also, to recap, I was named the negotiation rep for the nurse's group for the next contract. Our contract expired on Aug. 31, 2006 and we have yet to ratify a new one. The "old" contract mearly stated in the back of the contract this article which stated that "nurses will receive a 30 minute lunch break but must remain on the premises and on-call in case of emergencies." It does not state anywhere in the language of the contract any means of compensation for this worked time.

    We [nurses] decided that part of our proposal would be that we either be given our mandated 30 minute duty-free, unrestricted lunch or be compensated for that time. Well, unfortuately I was not at the very last (which of course no one knew it would be the last) negotiations mtg due to illness/medical day (I was actually excluded from school by the Board of Health due to exposure to whooping cough!).....anyway, at this meeting, the two sides did come to a tentative agreement which I just received in writing two days ago. Well, low & behold, they slipped in that the language regarding the nurse's lunch breaks and stated it would remain the same as in the "old' Contract with no mention of compensation for that time!!

    Of course, I am livid and emailed & called my union rep to say that we [nurses] do NOT agree with this and that is was not right that they even discussed the matter with the nurse's rep not present!

    I also talked with the Attorney General office on the matter and they made it very clear to me that the law stated that ALL employees in MA who work greater than 6 hours are entitled to a 30 minute duty-free, unrestricted lunch and that we must be compensated for that time if we are required to work during that time. The AG office did go on to state that the parties can agree that the compenstation can be included as part of the salary or as an additional stipend BUT NO WHERE in the contract does any language state that this time is being compensated in any way. As a matter of fact there is language which states an hourly wage for teachers who give up this time to supervise students in the cafeteria! I have not heard back from the union rep and I KNOW that this is going to be a heated argument!!

    Is there anything else in the labor laws that I can refer to to strengthen my agrument? I feel as though the union isn't even fighting for us [nurses] on this! I have had to explain my case to several union reps in several different ways and one response was "if you don't like it, why don't you go work in a hospital!"

    Thank you for your prompt consideration in this matter. We have a ratification mtg on Wed, Nov 8 to include all bargaining unit members, which consist of 250 teachers and 7 nurses! Obviously, we [nurses] are outnumbered! My fear is that all the teachers will agree to all the terms of the agreement because this one article does not apply to them!

    --------------------------------------------------------------------------------
    Last edited by QSusie; 11-06-2006, 04:49 AM.

  • #2
    Boy, am I glad I'm not Phil. I didn't have to read through that huge block o' text.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Sorry PattyMD, no disrepect at all, I didn't mean that it was exclusively for Phil, I would of course appreciate anyone who is willing to respond. Phil had responded to me last time and had mentioned to let him know how I made out. If you or anyone have any helpful input, I'd LOVE to hear it! Thank you for your time and consideration.

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      • #4
        Susie, no disrespect here either, but if you would edit your post to include some paragraph structure and white space, it would be a lot easier to read.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          You can waive your meal break, but you must be paid for the time if you do.

          Here are 4 useful sources of information on the meal break law (there are more of course, but these should give you a general layout):

          1. Chapter 149, section 100 (http://www.mass.gov/legis/laws/mgl/149-100.htm), which state basically that "No person shall be required to work for more than six hours during a calendar day without an interval of at least thirty minutes for a meal."

          2. The attorney general's advisory opinion 94/2 from Sept. 30, 1994, which tells us basically that employees can voluntarily waive their meal breaks, but if they do or if they are required to perform a job function during their break, they must be paid during the working period.

          3. The Minimum Wage Regulations at 455 CMR 2.01 (http://www.mass.gov/dos/forms/mw-reg..._20030425.pdf), which states that "Working time does not include meal times during which an employee is relieved of all work-related duties."

          4. The DOS opinion (MW-2003-008) issued August, 2003 (http://www.mass.gov/dos/mw_docs/mw-2003-008.htm), which interpretst the CMR above. It states that employees who are required to stay on premises during their meal break are performing a "work related duty" and therefore must be paid for the break.


          Hopefully, that gives you the info you need to negotiate your deal.
          Last edited by CompensationCounsel; 11-06-2006, 05:46 AM.
          This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

          This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

          Comment


          • #6
            thank you Phil, I will immediately go to those links! I'll copy them and have them ready for the big fight! I will let you know how I make out.

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            • #7
              Hi Phil, great helpful sources. Unfortunately, the only one that I could not find was the AG advisory opinion 94/2 from Sept. 30, 1994. Is there a way I can find that somewhere online? And, if you would not mind letting me know of the other sources that are available, I'll take what ever and as much as I can get! Thanks again.

              Comment


              • #8
                I don't think that Advisory Opinion is online. The DOS opinion from 2003 should have everything you need.

                Good luck.
                This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                Comment


                • #9
                  Thank you, you say but I am already hearing that even my own union rep is saying that we are exempt from the minimum wage law and therefore exempt from the state law (MGL c.149, s.100)!
                  How can this be!? Especially when the teachers are getting an additonal "hourly wage" to work during that time on top of their annual salary!?
                  There are only 7 of us nurses and 4 are afraid to fight this fearing that they will look bad! UNBELIEVABLE!!!!!!!!!!
                  What is my remedy and/or recourse?

                  Comment


                  • #10
                    QSusie,

                    We had this discussion in an earlier thread. http://laborlawtalk.com/showthread.php?t=85777

                    Your questions seem to alternate between whether you're entitled to a break, and whether you are supposed to be paid for that break.

                    Teachers and nurses are entitled to a break, unless they waive it (as you may have done in you CBA) or in some other limited cases. But, that doesn't mean you're entitled to pay for that break. That has to do with whether or not you are exempt.

                    As to questions of pay, the assumption in this latest thread has been that you are not an exempt employee. But, if you want to change that assumption and go back to questioning your exempt status, then indeed you may not be entitled to pay for your break, although you would still be entitled to take it.

                    At this point, you should probably seek the advice of your union's counsel or speak further with your rep. as to what your remedies are and the courses of action you can take. Unfortunately, there's not much more we can discuss here, as these posts are for really general/educational information purposes only, and it seems as though you need to make a definite decision.

                    Wish I could do more here.

                    Best, Phil
                    This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                    This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

                    Comment

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