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Pay Docking in MA

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  • Pay Docking in MA

    My friend started a new job a few months ago. Her boss barked at the employees earlier this week about not punching out for cigarette breaks and lunch breaks. It became a new policy that they have to do that from now on. When she recieved her check on Wednesday, she found out that her boss docked everyone's pay in the office 10 hours for the week for miscellaneous cigarette breaks, lunch breaks that he feels they've taken, and "screwing around" on the job, without any notice. They do not have it written in the handbook as a rule either. This seems highly illegal to me, what should my friend do?

  • #2
    The only break period required under MA law is the 30 minute meal for employees who work more than 6 hours in a day.

    I know of no case law that has decided whether employers can require employees to clock out for cigarette break (the smoke-free workplace laws are relatively new), although I see no compelling reason why employers couldn't do this.

    Although you might have an argument that would permit you to tak a smoke-break as a reasonable accommodation for your disability, I haven't seen a case decided on those grounds yet. And it remains unclear whether the break would have to be paid. I doubt it.

    The employer, however, must be sure of your time away...so the across-the-board 10 hour pay cut is troubling.
    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.

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    • #3
      The argument about smoke breaks being a reasonable accomodation for a disability is not likely to pass muster. It is not likely that being a smoker is going to qualify as a disability under the ADA and without ADA protection, accomodations, reasonable or otherwise, are not required.
      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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      • #4
        Thanks

        Thank you for the replies. I'm not saying that her breaks shouldn't have been clocked out, I was just wondering if he could dock the whole team's pay a whole 10 hours for the week without prior notice or documentation that the breaks actually added up to 10 hours per person. Do employers have that right to dock pay for any reason they see fit? Thanks again.

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        • #5
          Assuming we're talking nonexempt employees here (generally speaking, paid hourly), EACH employee must be paid for ALL time worked. If you were not, you can file a claim for unpaid wages.
          http://www.ago.state.ma.us/sp.cfm?pageid=1129
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            BTW, just a word to the wise;

            It has been my experience that employers rarely if ever come down so hard over the issue of breaks as you are describing unless there has been significant employee abuse. There is NO state where an employee is entitled to smoke breaks and Massachusetts does not require rest breaks; Massachusetts does not even require meal breaks unless the shift is over 6 hours. The employer is not required to put the break policy into a handbook before it can be enforced. So I would suggest to your friend that she and her co-workers keep in mind that employees can be fired, too, for excessive break use or abuse.
            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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            • #7
              Originally posted by cbg
              BTW, just a word to the wise;

              It has been my experience that employers rarely if ever come down so hard over the issue of breaks as you are describing unless there has been significant employee abuse. There is NO state where an employee is entitled to smoke breaks and Massachusetts does not require rest breaks; Massachusetts does not even require meal breaks unless the shift is over 6 hours. The employer is not required to put the break policy into a handbook before it can be enforced. So I would suggest to your friend that she and her co-workers keep in mind that employees can be fired, too, for excessive break use or abuse.


              That, I do understand. It's a small company, and from what she says they have been trying to cut corners financially (paying people under the table, a few other things that seem illegal) and in no way did any break she didn't clock out for come close to 2 hours per day. In fact, she didn't leave the office for any lunches, from what she told me. And she is (was, she quit because if this) a full time hourly employee, in fact, she worked overtime that week. Her boss just got pissed one day for people slacking off, which is understandable, but it was about 2 days before he docked the paychecks, and without him saying he would be doing so. It was also handwritten on the check stub, so he didn't go through the payroll company. It seems really shady to me.

              Thank you all for your help, and I'll pass that form on to her.

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