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  • Crazy Restaurant Questions Tennessee

    I hope someone notices this since nobody has posted sine July of '11. Anyway, I have a few questions and will try to sum it up quickly.
    I am an Executive Chef at a private non profit social club in TN. I am salaried exempt. I understand the laws pertaining to that payment category.

    1. My hourly employee wants to work through his mandatory 30 minute break with obvious time on the clock. I would like to to let him with pay, is that legal? We are a hospitality business that does provide comp breaks on the clock, but I do not want to get in trouble for letting him work through it.

    2. My wife really hates my schedule, surprise, is there any law state or federal that regulates long hours, (15-18) in any way?

    Hope to hear from anyone with incite. Thanks

  • #2
    Das ist in der Doktor!

    Originally posted by Chefahole View Post
    I hope someone notices this since nobody has posted sine July of '11. Anyway, I have a few questions and will try to sum it up quickly.
    I am an Executive Chef at a private non profit social club in TN. I am salaried exempt. I understand the laws pertaining to that payment category.

    1. My hourly employee wants to work through his mandatory 30 minute break with obvious time on the clock. I would like to to let him with pay, is that legal?
    No.
    http://www.laborlawtalk.com/showthread.php?t=75834

    We are a hospitality business that does provide comp breaks on the clock, but I do not want to get in trouble for letting him work through it.

    2. My wife really hates my schedule, surprise, is there any law state or federal that regulates long hours, (15-18) in any way?
    No.
    Exempt or non-exempt, As a Chef, long hours come with the job. I would suggest a different line of work, or you could open your own restaurant and those 15 to 18 hour days will start to look pretty good.
    Or you could get a different wife.

    Hope to hear from anyone with incite. Thanks
    Mandatory breaks are just that, mandatory. If the employee wants to work threw his break so be it, but he cannot be paid for doing so.

    .._________________
    ~ Free advice is like a public defender,
    …you get what you pay for. ~ drr
    Last edited by drruthless; 01-24-2012, 11:56 PM.

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    • #3
      The above answer is incorrect.

      If the employee works through his break, he MUST be paid for it. There are no circumstances whatsoever in which a non-exempt employee can work unpaid.

      It is, however, correct that it would be a violation of the law if he did not get a 30-minute break when he works 6 hours or more. The law does not require that this break be paid. However, violating the break law by allowing him to work through the break does not give the employer permission to violate the FLSA by having the work be unpaid.
      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.

      Comment


      • #4
        Agreed. There is (in theory) two different sets of laws in play.
        - Federal law (FLSA) never requires breaks but does require that breaks be at least 30 minutes (sometimes 20 minutes) long with no work done to be unpaid. http://www.dol.gov/dol/topic/workhours/breaks.htm
        - State law is whatever state law is. State law can require additional things that federal law does not. And state law varies a lot from state to state. TN is not my state and I have no idea what TN law requires.
        - Past that, while company policy cannot make federal or state law go away, it can impose addition requirements. If company policy says the employee must take an unpaid break, then the employee must take an unpaid break. If the employee works through the break, the employee must be paid (federal law) but they can be fired for violating company policy. If you are not sure what company policy or your state law is, talk to HR.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Originally posted by cbg View Post
          The above answer is incorrect.

          If the employee works through his break, he MUST be paid for it. There are no circumstances whatsoever in which a non-exempt employee can work unpaid.

          It is, however, correct that it would be a violation of the law if he did not get a 30-minute break when he works 6 hours or more. The law does not require that this break be paid. However, violating the break law by allowing him to work through the break does not give the employer permission to violate the FLSA by having the work be unpaid.
          I stand corrected.

          So, the employee would need the employers permission to work threw his break and get paid for doing so and not the Chefs. Correct?

          ..______________
          ~ Helping rid the world of stupidity,
          …starting with my own.

          Comment


          • #6
            No.

            If the employee works through his break, with or without permission, he MUST be paid. When I said there were NO circumstances under which a non-exempt employee can be required to work for no pay, that is exactly what I meant.

            If the employee works without permission, he can be disciplined for that up to and including termination. But there are NO CIRCUMSTANCES WHATSOEVER under which a non-exempt employee can work for no pay.

            Who has permission to allow him to work through his break is a matter of company policy. Although, in his state, as you point out the break is mandatory.

            But whether he can legally work through his break, and whether he must be paid for it, are two separate issues.

            Not sure if this is part of the problem, but it is not that the law requires the break to be unpaid; the law allows the break to be unpaid. The requirement is that there be a break, which the employer has permission to treat as unpaid. But if the employer wants to pay it, he can.
            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.

            Comment


            • #7
              No, if the law says the employee must get a 30 minute break, the employee must take a 30 minute break. The employer can't approve a violation of the law.
              I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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