September 29, 2020

In 2019, Wal-Mart was ordered to pay $6 million to a class of plaintiffs after a lawsuit (Hamilton et al. v. Wal-Mart) alleged the retail giant engaged in unlawful tactics to discourage employees from leaving the building during their state-mandated break and meal periods.   

Though that case is currently being appealed, it sheds light on an area of labor and employment law where it can be common for an employer to be unknowingly in violation.

Properly compensating employees for the time they work, and ensuring they are provided with all mandated break and meal periods might sound obvious. But consider this scenario: you operate a restaurant and your kitchen staff regularly eat their meals while working in the kitchen. You fed them, and they may have had the option to sit down for their break, but if the nature of your operation encourages that model of eat when you can, you could find yourself in trouble.

Likewise if you own a retail store during the holidays. Short-staffing and a high volume of customers can easily lead to an “all hands on deck” approach. In the heat of battle it may feel like an adrenaline rush and a great example of teamwork. After the battle it may be seen as a violation of the law.

In New York State, the law requires employers (with a few exceptions) to provide all employees with meal and rest periods depending on the length of the shift they are working. The guidelines governing those rules can be found here. Employers found to be in violation of the labor laws can face stiff penalties from the state.

This brings us to the timeliness of revisiting this issue – COVID-19. Even before the global pandemic struck, there was a shift to employees working remotely. One study found in 2018, more than 4.7 million American workers were remote.

Today, as the world waits for a vaccine for the Coronavirus, a recent Gallup poll found that more than two-thirds of American workers say they have been working at least partially from home. What does that mean for employers in terms of compliance with New York State law? It means you have employees working outside of your sight, so to speak. In your building, a supervisor can easily monitor workers and ensure they are taking their proper breaks. At home, that oversight can be lost.

What is seen by one employee as flexibility can be seen by another as forced overtime. Employees have reported feeling “guilty” about taking breaks when they are already working from home. Workers have also described working longer hours to produce more work so they can keep the perk of remote working.

In both cases, those acts can put the employer in a vulnerable position. The law doesn’t distinguish remote workers from in-office employees. Calling non-exempt employees before or after their shift ends, scheduling Zoom meetings off hours, or expecting responses 24/7 from remote workers are examples where employers could find themselves in trouble.

As was the case in the Wal-Mart lawsuit, you don’t necessarily have to deny your employees meal and rest breaks, or demand extra work after hours. Just creating an environment where employees feel discouraged from taking a break, or feel pressured to work longer, unpaid hours in order to keep working from home, could be enough.

If you have employees (exempt or non-exempt) working remotely, it is wise to revisit your employee handbook and offer your employees a clear and thorough reminder of the policies. Encourage all employees to take their breaks (not only is it the law, it makes for happier, more productive employees). Make sure they are accurately documenting all hours worked. Be mindful of the schedule. Employers who might never expect employees to be at their desks at 6 pm, may think nothing of scheduling a 7 pm video call. Remember, the rules are the rules, and breaking them can be costly.

At Gross Shuman, our labor and employment team has decades of experience working with employers of all sizes across all industries. We are here to help if you find yourself in trouble, but we really love, is to work with companies proactively to make sure you have the policies and trainings in place to avoid costly trouble. Give us a call anytime, we are here to help.

B. Kevin Burke Jr. is an attorney with Gross Shuman, P.C. He focuses his practice on the litigation of contract disputes, labor and employment issues, intellectual property protection, and trade secret cases. He can be reached at 716.854.4300 ext. 292 or [email protected].