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Not allowed to leave building during unpaid luch Florida

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  • Not allowed to leave building during unpaid luch Florida

    My wife’s employer recently instituted a requirement that she take a two-hour unpaid lunch break to save on labor hours. However, during the two-hour unpaid time she is not allowed to leave the building so that if her employer needs her to return to work at anytime during her lunch, she will be immediately available (she works at a veterinary clinic). I understand that according to Title 29, Subpart C, 785.19, paragraph (b), that it is not necessary that the employee be permitted to leave the premises. However, since the purpose of her employer not allowing her to leave the building is so that they can have her return to work at anytime during that period, doesn’t 785.17, On-call time apply? She is “on-call” during her unpaid meal break so shouldn’t she be paid for her entire lunch time, or be allowed to leave the building? These two sub-sections seem to contradict one another.

  • #2
    per US DOL
    An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

    Since your wife needs to be available at all times in case immediately needed, I would
    say this is time that is under control of the employer & needs to be paid.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

    Comment


    • #3
      Originally posted by Betty3 View Post
      Since your wife needs to be available at all times in case immediately needed, I would say this is time that is under control of the employer & needs to be paid.
      That's what I thought, but I was confused by 785.19: "Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period." I guess the operative clause is "otherwise completely freed from duties during the meal period", meaning that the employee is not asked to work, nor be subject to being "on-call". I am trying to figure out the reasoning behind 785.19. In what situations would an employer be justified in using this regulation to restrict the employees to the premises without paying them for the time?
      Last edited by Kennel Worker; 10-28-2010, 05:19 PM.

      Comment


      • #4
        Interesting question. While I agree with Betty's answer, I cannot find hard support for it. I went to a payroll specific website and posted a variant of the question there. Maybe someone can come with hard support. Or not.
        http://www.payrolltalk.com/board/vie...c9525b5acc4bcf

        You might want to give federal DOL a call and ask them. If they (the feds) have hard support, I would be interested in the cite.

        While I would not recommend an employer walk down this road, a 785.19 defense is not obviously incorrect on it's face. Meaning that a judge could take it at face value. I have looked at the DOL handbook, plus the DOL opinion letter page, plus some Googling and I am not seeing this particular question addressed.

        If all you do is look at the regulations, you do indeed get different answers depending on which regulation that you look at. While I can say the on call regulation should override the meals regulation, absent a cite, that is just my opinion. Each regulation is legal by itself. I have an ABA law book on FLSA, with sections on each subject, but no case law where someone tries to use 785.19 to end run around 785.17. These are old regulations and I would like to think that someone has thought of this before. I am surprised that I never though of this before. But until we can find an actual administrative or court decision, this looks to be unsettled.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          DAW, in your post on other forum you note: For the sake of argument, lets say that the employer schedules a 2+ hour lunch in which the employee is required to remain on site. Assume that state is FL (just like fed). Under 785.17, this is paid time since the employee can effectively use the time for their own purposes. But under 785.19 this is unpaid time.

          Re 785.17 did you mean this is pd. time since the ee "cannot instead of can" use the
          time effectively for their own purposes.

          or am I confused? I might have added to the other post also that in this case the
          employer requires that ee be immediately available when he needs her. (just a suggestion)
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

          Comment


          • #6
            Originally posted by DAW View Post
            You might want to give federal DOL a call and ask them. If they (the feds) have hard support, I would be interested in the cite.
            That is my next step. I spoke with a supervisor at the Florida Agency for Workforce Innovation who told me that the employer could require employees to remain on the premises during unpaid meal breaks, and that "Florida, being a right to work state, the employer can essentially impose any policies they wish, and if the employee does not like the policies, they can quit". I want to believe the supervisor's comment did not mean to suggest that employers in Florida could impose policies that violate federal labor laws.

            When I cited 785.17, the supervisor admitted that she was not aware of this regulation and she suggested I contact the local DOL office for an opinion.

            Comment


            • #7
              Good idea - call federal DOL.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                Originally posted by Kennel Worker View Post
                785.19: "Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period."
                785.16 also seems to contradict 785.19: § 785.16 Off duty. (a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

                How can 785.19 state the the employee be "completely freed from duties" when 785.16 clearly defines "completely relieved from duty" as "definitely told in advance that he may leave the job"?

                Comment


                • #9
                  Well, when we say "the feds" and "DOL" we mean exactly them. The federal Dept. of Labor. Not the Florida Workforce Innovation Department. Florida basically has no wage and hour laws.

                  And someone who says
                  Florida, being a right to work state, the employer can essentially impose any policies they wish, and if the employee does not like the policies, they can quit".
                  I wouldn't trust to babysit my pet ****roach, since what s/he was describing was "at-will employment", NOT "right-to-work" (which means a worker is not required to join a union to get a specific job).
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                  Comment


                  • #10
                    Patty, you have a pet ****roach?
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                    Comment


                    • #11
                      Originally posted by Betty3 View Post
                      Re 785.17 did you mean this is pd. time since the ee "cannot instead of can" use the time effectively for their own purposes.

                      or am I confused? I might have added to the other post also that in this case the
                      employer requires that ee be immediately available when he needs her. (just a suggestion)
                      Good catch. The "not" has been added.

                      I am going to leave the "immediately available" off because IMO it would complicate the question by adding a condition not addressed in either regulation. If I can get the question I asked answered, I am happy. No need to move the goal post some more.
                      "Reality is that which, when you stop believing in it, doesn't go away".
                      Philip K. **** (1928-1982)

                      Comment


                      • #12
                        Originally posted by Betty3 View Post
                        Patty, you have a pet ****roach?
                        She used to. Anyone seen it?
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Originally posted by Kennel Worker View Post
                          785.16 also seems to contradict 785.19
                          Agreed. 785.16 and 785.17 both (more or less) say the same thing and 785.19 says something very different. Perhaps the 785.19 rule came from some court case that addressed that one point only. Maybe Walling v. Dunbar.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

                          Comment


                          • #14
                            Originally posted by DAW View Post
                            Good catch. The "not" has been added.

                            I am going to leave the "immediately available" off because IMO it would complicate the question by adding a condition not addressed in either regulation. If I can get the question I asked answered, I am happy. No need to move the goal post some more.
                            I understand. I would like to know also the opinions on the laws just as written. (I
                            was just thinking though on this case it might "possibly" make a difference needing to be
                            immediately available & under the employer's control.)
                            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                            Comment


                            • #15
                              Originally posted by DAW View Post
                              She used to. Anyone seen it?
                              I haven't. It would have quite a distance to crawl to get to me.
                              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                              Comment

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