Is it legal for a job to not allow employees to take breaks?
May 9, 2013 6:08 AM   Subscribe

I work in a house that has been designated as a group home for 5 disabled adults. The program/company is funded for by the state. I am an hourly employee who works a full 40 hours (plus up to 10-15 hours of overtime @ time and a half many weeks). My checks include deductions in all the proper taxes and stuff that any job would withdraw from. It's a full on legit job.

My responsibilities include: preparing meals, helping with laundry, play games with, proper care for the 5 residents, organizing outings into the community, etc....In a sense, it can be looked at as a glorified babysitting job. There is a lot of downtime where when, the work around the house is done and all odd jobs are complete, we sit around and watch TV or movies, read a magazine, and basically chill. I'd guess that in a 40 hour work week, at least half that time is down time.

There are rules in place though where we are not allowed to leave the home, unless we bring one of the residents with us. We often take them grocery shopping, to the park, to the mall or movies; just basically helping them interact with society. All part of the job. While it isn't addressed in the employee handbook, it was kind of explained to me (under the table), that as long as you bring a resident with you and perform an activity that benefits them, this is the time where you can kind of run quick errands (the bank, the post office, etc...)

In our 40 hour work week, it was explained to me that this is considered our breaks. Most shifts have 2 people working them, so if one person goes out with a resident or two, there is another person at the house watching the other residents. In a nutshell, I am not entitled to a one hour break if I work an 8-12 hour day, nor am I allowed to leave for a 15 minute break (on my own) for a shorter day I may be working (4-5 hours)....

I was brought into the job by a close friend who manages the home. i read the employee handbook where this isn't addressed.....I asked him (the manager) about it and he explained that since the job has so much downtime (which I get paid hourly for), that counts as our breaks, and therefore why they company does not need to legally allows us to have our own free time over a course of a shift....It is frowned upon severely to run any personal errands (with a resident) while out, and can result in and up to termination, I was told that , that un-officially is our time to ourselves, and to proceed with our personal errands with caution...I am not a smoker, but smoke breaks are allowed outside of the home on the patio or deck, where access to the residents are still close by and issues can be dealt with...

My issue is, is this legal? How can I work an official 40 hour full time state funded, tax taken job, and not be entitled to breaks....I am in NJ....I don't know the specifics of the law, but in an 8 hour shift, shouldnt I legally be entitled to a one hour break and several 15 minute breaks, where I can leave the property at will? If I work a 4 hour shift, aren't i entitled to a 15 minute break or something? I was told that since, I am sitting around watching tv, or playing on my phone, or reading a book half my shift, that they do not need to provide me with a lunch or dinner hour, etc...

There is a shady management staff (IMO) in place and from the 7 months I have been with this company, I have heard stories of other employees being 'pushed out' of the job if you question or cause any ruffles in the feathers. Most employees in the 12-15 group homes spread out across NJ speak with each other, and share stories of someone who 'pissed off' the wrong member of management, and eventually was either let go for a totally 'random' reason....

This job is not a long term gig for me. I was in a lurch and took the job. I do it well, but I am on the search for a better career option. i am not looking to cause waves, but upon my leaving this job, I want to find out my legal rights about this.....If I am entitled to these breaks over a 40-50 hour work week, then do I have any recourse to sue the company for back pay....I'll have pay stubs showing the exact amount of time I have put in....Could this turn into a class action suit with every current and former employee for back pay?

Or , is there a legal loophole in this job field that supersedes the law and they can legally run the operation like this? I don't think because of the abundance of downtime on the job which I am being paid for supersedes my legal rights either.

This is about my legal rights..Trust me, I feel lucky in some slight manner that I am not having to do heavy physical exhausting work. It is a somewhat enticing proposition to get paid to basically hang out.....I understand that, however.......

Thanks!
posted by TwilightKid to Work & Money (37 answers total) 1 user marked this as a favorite
 
This would be a good question for your State's Labor Department.

As far as I know, no, that is not legal. I have no idea if you have any recourse for compensation for breaks that you were not allowed, though.
posted by thelonius at 6:10 AM on May 9, 2013 [2 favorites]


Most states do not have statutory breaks for workers.

Another layer to add is that you work in a healthcare group home environment; this could figure in to how your compensation/overtime is figured, too.

Best to call your state's department of labor and check it out.
posted by FergieBelle at 6:16 AM on May 9, 2013 [1 favorite]


In MO this would not be legal.
Are they making you clock-in/out for lunch or "Breaks" for "appearances only", meaning, do they make their books look like you do get breaks and lunches? If so, than I'd feel you really got some cold hard stuff on 'em. Check your local laws, but in my experience, once you turn in your two week notice-you lose all legal rights on your end concerning these issues.
posted by QueerAngel28 at 6:19 AM on May 9, 2013


Federal labor law does not mandate rest or meal breaks. Definitely check your state laws.
posted by Thorzdad at 6:21 AM on May 9, 2013


No, there is no clock in or clock out.
I sign a time sheet when I arrive each shift.
Every day is different, depending on the residents 'work' schedules, the weather, etc....So, each day plays out slightly different. We are encouraged to do as much as possible with the guys within the community (not just let them sit around the house all day, obviously, that isn't healthy)...

If I work an 8am to 8pm shift, I have a resident or two with me anytime I leave the home for either shopping, a leisure activity, or whatever....If I choose to stop at the bank to do some personal business, I am doing so with the knowledge of that if a person in management see's me with the residents, I could be fired on the spot....

In a nuthsell, in that 12 hour shift, I am not entitled to a single minute (outside of going to the bathroom, haha, to my self)....
posted by TwilightKid at 6:24 AM on May 9, 2013


IAAL, IANYL, TINLA.

I do not do enough labor law to have an informed opinion about whether or not this is legal, although my best guess would be that it is. Under the federal Fair Labor Standards Act, there is no requirement that an employer provide breaks or meals periods to workers. However, your state's labor laws may have have such provisions. You will need to speak with your state's labor department or an employment law lawyer in your state. In my experience, these sorts of questions are highly fact-intensive.

Even if there is a claim, I would really urge against ginning up some class action lawsuit. Class actions are great for huge fee awards for the plaintiff's lawyers, but not very much for compensating the class members. Ever received a letter in the mail that you might be a member of a class that just settled a lawsuit and now you may be entitled to a $2 coupon? f I weren't subject to confidentiality agreements, I could tell you war stories about class action settlements that would curl your hair. (I have serious questions about whether or not you would have a certifiable class, but that is beyond the scope of your question)

And if I were the defending lawyer, I would love to have this post where you talk about "chilling" on the clock.
posted by Tanizaki at 6:25 AM on May 9, 2013 [7 favorites]


You should consult the NJ state labor board if you want a hard and fast understanding of this.

Personally, I wouldn't bother though. If you have about 20 hours per week where you're not actively doing something, but just in the home, frankly, that's pretty sweet.

I had a similar job when I was in college, where I worked in a group home with kids and sometimes we'd let them play Space Invaders and I'd chill in the kitchen with coffee.

I ran my errands on my off days.

It's one of those things I think, because of the flexibility of the job, and because so much of the time on the job is not actively interacting with clients, breaks would be considered superfluous.

You could make a federal case, but I don't see the point.
posted by Ruthless Bunny at 6:26 AM on May 9, 2013 [5 favorites]


According to the NJ department of labor site:

Q. Are breaks and lunches required by law?

A. The mandatory break law only applies to minors under the age of 18 and they must be given a thirty (30) minute meal period after five (5) consecutive hours of work. Company policy dictates break and lunch periods for anyone over the age of 18.


IANAL, TINLA, etc.
posted by rtha at 6:26 AM on May 9, 2013 [9 favorites]


I don't know the specifics of the law, but in an 8 hour shift, shouldnt I legally be entitled to a one hour break and several 15 minute breaks, where I can leave the property at will?

A one-hour break plus several 15-minute breaks would be an EXTREMELY generous allowance. I work an 8 1/2 hour shift daily, with one 30-minute off-premises lunch break allowed, nothing more. I believe a meal break and access to a toilet and handwashing facility is all that's required by law for full-time hourly work. Consider yourself fortunate that you have so much "chill time" while getting paid.
posted by RRgal at 6:28 AM on May 9, 2013 [1 favorite]


I'd guess that in a 40 hour work week, at least half that time is down time.

It sounds to me like you do get breaks; many hours more of them than most jobs. What beyond "sit around and watch TV or movies, read a magazine, and basically chill" are you expecting "break" to mean?
posted by ook at 6:29 AM on May 9, 2013 [2 favorites]


Tanizaki

I totally get what your saying...I am not looking to start a revolution..not looking for a 'pay day'. Not looking to 'rage against the machine'. My intentions are what is best for the residents. I respect my job. I am looking out for my legal rights. 'Chilling' on the job, even for 8-10 hours is/can be mentally exhasuting, especially when dealing with 'mentally challenged' people.....While watching TV per say, it is not that we are ignoring or neglecting the resident....Quite frankly, it is the opposite....It is constantly getting new snacks, filling up drinks, cleaning up spilled drinks, assisting in the bathroom, etc.....'Chilling' may have been the wrong term..... The actual amount of time where we are truly 'doing nothing' is not really that much....I used the term 'chilling' in more of a 'its better than mowing lawns in the 95 degree sun, i'd rather be in the air conditioning watching a movie' type way....
posted by TwilightKid at 6:31 AM on May 9, 2013


RRgal & Oak.

I am 38 years old and have worked in countless full time jobs from office positions to grocery store clerk positions, all in the 40 hour work week time frame, since I was 16 years old. That's 22 years of full time work jobs I have been lucky to have.

EVERY single job I have ever had, whether it was physically demanding, mentally demanding, or mindless tasks, outlined breaks, meal breaks, smoke breaks, etc etc..... I have never had a job where I was not entitled to 'time off' in a shift whether it be 4 hours or 8 hours, or the sometime 12-14 hour shifts I work these days.

My cousin who is a nurse, and works in a hospital sometimes works 16-18 hour shifts....Sometimes, overnight shifts.....When the quad is quiet, the floors are clean, the paperwork is filed, there is downtime, where the chit chat, eat, browse the internet, etc......It is downtime.....There may be no important work to be done....They 'chill'......BUT, over there 16 hour shift, they each still get a personal break, whether it be for meals, or simply to remove yourself from the hospital to run an errand or two....

I am not a labor lawyer in any sense...I am processing everyones answers. And learning as I go and taking some of the responses into consideration....But I still cannot grasp how I can be told that I am not entitled to any kind of rest or break.....

My excerpt from before......If I cut lawns for a living.......And i got up at 5am in the morning, and had to cut 12 lawns which could take me to 8pm that night.....a potential 15 hour shift.....it is cool for my boss to say, that my breaks are the drive time between each job....whether it is a 5 minute drive or a 40 minute drive to the next lawn, the in the car time is my time off? i need to eat, use the bathroom, etc...all within that driving time frame....

i dunno...gonna reach out to the state labor department....
posted by TwilightKid at 6:42 AM on May 9, 2013


It sounds like the real issue here is that you are required to be with at least one of the residents for the entire 8-12 hour shift. That's what makes it feel like you never get a break, even though you can watch movies, run errands, etc.

If you are providing care according to some kind of professional standard that is regulated legally (e.g. if you were an RN) there may be further standards regarding this, but if not it seems like rtha has the answer.
posted by telegraph at 6:43 AM on May 9, 2013 [2 favorites]


I am actually a Director for a home of this type, albeit in another state and obviously with a different company.

When we hire someone, part of the initial orientation is offering the option to take unpaid meal breaks when available, or to get paid to eat meals with the residents. Without fail everyone I have hired has opted for the paid meals. As far as I know we are not obligated to offer specific breaks, especially as sometimes because of staff shortages there may just be one person working a particular shift and the health/safety of the clients dictates that someone be present at all times, so a guaranteed break could well create a conflict of laws and get us in hot water one way or the other.

To be sure, if a employee came to me and said, 'hey I am finding my job just a little stressful is there anyway I can try and build in some break time into my shifts' I would try and accommodate them wherever reasonable, and when there are sufficient staff available (95% of the time tbh).

And really? I kind of expect my employees to be self managing enough that if they do need some minor downtime, to actually talk with their fellow employees and arrange it in a responsible reasonable manner.

This does not mean ducking out of work for those 15 mins and running a quick errand, (really that is what your non work/personal time is for), but it can mean popping outside for a quick stroll up the block and back, perhaps a sit out back etc.

The nature of this job is flexibility, you take your breaks when you can, not at 2pm exactly everyday.
posted by edgeways at 6:50 AM on May 9, 2013 [4 favorites]


My wife works in a similar field here in Canada, with experience in a variety of positions. Here the employer is granted a variance or exception from the usual break laws by the province, and employee contracts include the information regarding the break variances. By signing the contract they give their consent/waive their right to normal break entitlements. Not saying New Jersey & Manitoba's systems are super-exactly the same, but it would be a good idea to review any employee handbooks or similar materials you were given at time of hiring and to contact the appropriate Labour Dept. or board in your area.
posted by Alvy Ampersand at 6:54 AM on May 9, 2013


edgeways, thank you...

I was never given the option of unpaid breaks or eating with the residents....We do eat breakfast, lunch, and or dinner with the residents 'as a family' depending on which shift we work.

There are plenty of times, where I have worked in the home alone, and of course, a true break 'from the action' is not possible.

My bosses are extremely flexible and do work with the staff on schedule changes to accomodate a doctors appointment, oil change for the car, kids play at school, etc....

You seem to understand the nature of the job since you do it....

Going to back to my work experience since I was 16 years old, I just never encountered this type of situation. I guess I assumed that jobs are required , by some degree, to provide an 'off time' whether it be paid or not, to their employees.....Any by break, that can mean anything...not neccesarily meals only....

I worked at the Grand Union Grocery Store.....in the break room, it clearly laid out with all the job documentation, for everyone to see.....There was a piece of paper that i think was broken down into two columns....employees 17 and younger and employees 18 and above, and it listed down by how long your shift was, how long of a break you were entitled to, and what percentage of that time off was paid for by the store, and what was considered 'unpaid'.
posted by TwilightKid at 6:59 AM on May 9, 2013


Also on the NJ Dept of Labor site is a FAQ specifically about health care workers, which you may be classified as.
posted by rtha at 7:10 AM on May 9, 2013


TwilightKid: in the break room, it clearly laid out with all the job documentation, for everyone to see

If you google "[your state] Labor Posters" you will find the type of posters that should be easily available for all employees to see at their place of work, and clearly and simply* break down the appropriate laws and regulations. Here is the page with the NJ posters.

* Theoretically. We are talking about employment law, so it's not exactly ABCs and 123s.
posted by Rock Steady at 7:15 AM on May 9, 2013


As an emergency department doctor I work 12 hour shifts and have no mandatory breaks for lunch or otherwise. Some shifts I am lucky to get time to go to the bathroom. I eat a protein bar while doing one of my charts and that is lunch. I am certain this is the case for people in my job nationwide, and that it is legal. So... Yeah, it's definitely legal in some cases not to have breaks, and I'm not super sympathetic to your cause, although I realize most people's jobs do have them.
posted by treehorn+bunny at 7:26 AM on May 9, 2013 [3 favorites]


[TwilightKid, this is a forum for asking a question and getting answers not an ongoing discussion place about your topic.]
posted by jessamyn at 7:41 AM on May 9, 2013 [3 favorites]


For heaven's sake, you get half your paid time as 'down' time, so if that doesn't count as "breaks" I don't know what does. And you can't run your personal errands and chores on your workdays? Neither can most of us --- that's what your days off are for. For the answer to "is it or isn't it legal?", check with either your state's Labor Board or an employment lawyer.

And like treehorn+bunny, I work anywhere from 8-16 hours a day in a job where there flat-out isn't any such thing as formal, go-somewhere-else-and-chill Break Times (although I'm in entertainment, not lifesaving!), so I too am just a bit unsymphathetic to your having 50% of the day effectively not working but still wanting more.
posted by easily confused at 7:52 AM on May 9, 2013 [2 favorites]


I guess I assumed that jobs are required , by some degree, to provide an 'off time' whether it be paid or not, to their employees.....Any by break, that can mean anything...not neccesarily meals only....

Your job does provide paid breaks. Your issue seems to be that you can't leave your jobsite while you are on your shift. That seems very normal to me. You are on-the-clock all day, so you can't perform personal errands.

It sounds to me like your previous jobs had internal (paid or unpayed) break requirements above and beyond NJ state law. That is pretty common, whether because they are interstate companies that ask all branches to comply with the strictest laws, or because they believe in the value of breaks, or because of union contract negotiations, etc.
posted by muddgirl at 7:53 AM on May 9, 2013


Rather than a class action suit, your efforts may be more rewarding if you pursue Union certification of the different locations together. As you see, some employers are happy to get every ounce out of you short-term even if it does not pay off for either of you long-term (for you, burnout, for them, having to constantly replace burntout employees).

I would caution you to be very discrete and do any research into unionization off-site on your personal time.
posted by saucysault at 8:05 AM on May 9, 2013 [2 favorites]


It's worth noting that time spent sitting around while on duty isn't a paid break. It's paid, but it's work. A break is "go read a book and we won't ask you to do anything for the next X minutes". The OP has the "go read a book" part, but not the "we won't ask you to do anything" part. If it's my office hour, I'm still doing work even if no one shows up and I spend an hour reading Metafilter. I'm being paid to sit there in case someone shows up, much like the OP is getting paid to assist clients as needed. It's pretty clear to me they aren't getting breaks, so perhaps we should stop lecturing them about how they have breaks, but like rtha pointed out, they seem not to be entitled to them by law.
posted by hoyland at 8:31 AM on May 9, 2013 [5 favorites]


I don't know the specifics of the law, but in an 8 hour shift, shouldnt I legally be entitled to a one hour break and several 15 minute breaks, where I can leave the property at will?

This would not be normal at all, not in the US. With hourly work, like retail, you'd get maybe half an hour unpaid for lunch and one 15 minute break paid. Any lateness returning from these breaks would be a serious problem. And this is often work where you have NO opportunity to leave your position the rest of the time, like running a cash register or something.
posted by BibiRose at 8:38 AM on May 9, 2013 [1 favorite]


I may be wrong here, but doesn't the size of the company matter? I looked this up once (in Virginia, but I'm sure it's the same all over) but some of the rules that apply to larger companies don't apply to smaller companies because they don't have the manpower to "cover the store" so to speak.

For example, when I worked as a cashier/night manager in a convenience store, a half hour meal break was out of the question, -- even on ten hour shifts -- because many times it was just me in the store. Even with two people working, breaks were cut short if the lines got long. If your company is small, things like breaks just don't play into it.
posted by patheral at 8:47 AM on May 9, 2013


If a grocery store register person is scheduled to work a 12 hour shift, and the store is dead empty a majority of the day, is she exempt from a break, cause she isn't ringing up customers constantly?

If a grocery store register clerk is scheduled to work a 12 hour shift, and her employer does not provide for a break in the employee manual or employment contract, she is not legally entitled to a break no matter the circumstances. Even if her work is non-stop go go go. That is my (layperson) reading of the information provided several times.

The majority of employers recognize that this is an untenable working environment, and they provide for breaks. This does not mean that they are legally required to.
posted by muddgirl at 8:48 AM on May 9, 2013


[TwilightKid, stop threadsitting please. ]
posted by jessamyn at 8:59 AM on May 9, 2013 [2 favorites]


I am from Oregon and have had to deal with this in the past.

In Oregon: "The typical adult employee whose work period is eight hours long is entitled to receive at least a 30-minute unpaid meal period and two paid ten-minute rest breaks. Different provisions apply to minor employees under the age of 18."

An employee who works a work shift longer than 10 hours is entitled to a third rest break. (See chart at the end of this fact sheet.)

In addition: "Oregon law provides BOLI with the authority to assess civil penalties against employers of up to $1,000 for each violation of the meal and rest period provisions of the law."

---
Q. No matter how often I remind my employee, he refuses to take his meal and rest breaks. Since I have given him every opportunity to take the breaks but he chooses not to, am I in compliance?
A. No; your employee may not legally waive his rights to receive required rest and meal periods. To be in compliance, you must require your employee to take all mandated breaks, and you may even need to discipline an employee who refuses to do so.
---

Our information is here. Hopefully there is a similar resource where you live.
posted by Leenie at 9:30 AM on May 9, 2013 [1 favorite]


If you're in New Jersey and your job is in New Jersey, the only laws applicable will be New Jersey laws (and Federal ones). Please do look over the NJ labor law site I linked to above, which seems to make it very clear that New Jersey is not among the states with mandatory breaks for workers over the age of 18. It seems like a pretty clearly written site, and hopefully if you call them with more questions you will talk to someone who can also explain things clearly.
posted by rtha at 9:37 AM on May 9, 2013 [1 favorite]


Regarding labor laws, this seems a propos if a little off this specific topic, posted in today's New York Times -

frohttp://takingnote.blogs.nytimes.com/2013/05/09/no-right-to-know-your-rights/?hpm today's New York Times
posted by citygirl at 11:05 AM on May 9, 2013


Call the state Labor Dept. and ask them.
http://lwd.dol.state.nj.us/labor/wagehour/content/wage_and_hour_compliance_faqs.html
http://lwd.dol.state.nj.us/labor/wagehour/wagehour_index.html

FYI, in Maine, there is no requirement for an employer to provide paid breaks. After 6 hours of work, employees must be offered a 30 minute break, unpaid. Many employers offer a 10-15 minute break in every 4 hour work period. Many employees believe this is a requirement. I've talked to the Employment Bureau, and it is not a requirement.

You're working 12 hour shifts; that's a long stretch. During the night, can you give yourself a virtual break - go to the porch and meditate for 15 minutes, read in the bathroom, or in some way vary your time?
posted by theora55 at 2:51 PM on May 9, 2013


I think the best answer is to inquire with your state's department of labor; or, to consult an attorney. To the extent you're seeking a legal opinion or advice, it's unlikely that anyone will or should give that here because of certain ethical rules.
posted by J. Wilson at 4:15 PM on May 9, 2013


I can't answer as to the legality of this is in your jurisdiction, but I have both worked as a support worker in and managed several similar services, and this is totally normal. In fact, this has been the case in every such service I have worked in or managed, in two countries (neither being the US). You are not expected to provide active support every minute of your shift - as you say, there is a lot of downtime, and you would be expected to take a break where and when you can. Is there an office/ sleep-in room you can use? Or can you go into the dining room or kitchen when people are watching TV in the living room? Outside onto the patio? Particularly if there are two of you on shift at a time, you would be expected to work it out between you to take a break when possible. This is doubly so if, as you say, half your time is downtime (!! if this is really the case the service is overstaffed). If there was some emergency where you did have to provide active support for the entirety of your shift (a medical emergency where you had to support someone to the hospital; fire, flood or gas leak requiring evacuation; etc), then I would hope that your manager would be understanding and provide relief cover so you could leave early, if at all possible (sometimes it won't be).

Also, in none of the services in which I've worked or managed has it been okay to leave the house, or to run personal errands during work time - in fact, these would be disciplinary offences (but of course, as a lone worker no one is watching over you - unless they do spot checks!).

I am somewhat perturbed by your description of your work as a glorified babysitter (unless of course, you are supporting children?). Is the objective of the service to support people towards independence? Even if it's not, if the people have really high support needs that preclude them from ever undertaking daily living tasks independently, your role is to provide support for them to live as citizens of the community in which they reside, not to babysit. Have you done any training in normalisation, or social role valorisation, or person-centred approaches? These should have been part of your induction, but if not, you should ask for training in these areas to help you to better understand your role in these people's lives.
posted by goo at 5:30 PM on May 9, 2013 [1 favorite]


I'm no longer allowed to respond.
The question I asked was answered, and I got sucked into a whole bunch of responses based on people making assumptions based on what I shared.
Thank you for providing me in the direction to have my question answered MeFi peeps.
posted by TwilightKid at 6:56 PM on May 9, 2013


TwilightKid, what I get from your responses is that the nature of the work wasn't properly explained to you before you accepted the position, and that this job isn't necessarily a great fit for your personality and lifestyle at the moment - and that's ok. Paid, professional support work for people with disabilities is hard, and certainly not right for everybody (I'd argue it's right for very few people, really) - and if you feel it isn't the job for you, it's ok to tell your friend that and to look for work better suited to your skills and temperament.

Also, if you have the answers to your question you can tag it as resolved. Best of luck to you.
posted by goo at 7:56 PM on May 9, 2013


And if you have issues with the management of the service, or think people aren't being supported appropriately, you should raise those as a whistleblower with the organisation, funding body or regulator of social care services for your jurisdiction.
posted by goo at 8:06 PM on May 9, 2013


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