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Paid Employee Breaks & Deductions from Paychecks – FLSA Q&A’s

This is a second part in a regular series of Q&A’s for minimum wage and overtime questions commonly presented by employees.

above-the-bar-logo-no12.jpgQ: My employer refuses to pay me for taking a break during the day or for lunch. Am I entitled to wages for taking a break and for lunch?

It is usual custom for your employer to give you a paid rest period or a break for about 20 minutes or less. However, your employer is not required to give you a break or a rest period. The break is considered hours worked unless your employer has specifically and clearly told you that you can only take a break for x minutes. If you then take a break for more than x minutes, your employer can discipline you.

Your employer does not have to pay you for taking a lunch time. However, New York State Law provides that an employee working for a mercantile or other establishment is entitled to a 30 minute lunch break between 11 a.m. and 2 p.m. if the employee works a shift more than 6 hours that goes beyond lunch time. If you begin working before 11 a.m. and work past 7 p.m., then you are also entitled to an additional meal period of at least 20 minutes between 5 p.m. and 7 p.m. If an employee starts working between 1 p.m. and 6 p.m. with a shift lasting more than 6 hours, then in the mercantile or other establishment, the employee is entitled to a 45 minute meal break. If an employee is employed with a factory, the employee must be given 60 minutes for a lunch break. If you are employed during the day shift in connection with a factory, you should be getting a 60 minute lunch break between 11 a.m. and 2 p.m.

However, you must not be performing any work during lunch or meal time which is meant for eating. For example, if you stay at your desk during your lunch time to finish reading a report and eat at the same time, then you must paid for the time worked. Likewise, if your employer asks you to eat at your desk during lunch because he is expecting an important package, then you must be compensated for this time as having worked.

Q: If I am a waiter who accidentally broke some dishes and glasses, can my employer deduct money from my wages to pay for the items?

New York Labor Law provides that your employer cannot make deductions from your paycheck unless the deductions are legally required or you give your employer permission to do so in writing and the deduction benefits the employee. Some legally required deductions include payroll taxes, child support, and wage garnishments. Examples of deductions that benefit the employee are insurance premiums, pension or health benefits, charitable contributions, or union dues.

Your employer is not allowed to make deductions from your paycheck for any damages you might have caused to his property or for mistakes made at work that cost him money. For example, if you are a waiter or a bartender and you break some glasses or dishes while working, your employer is not allowed to deduct it from your paycheck or make you pay for it. Similarly, if you accidentally delete an important file at work that ends up costing your employer thousands of dollars, he cannot deduct that from your paycheck.

Under the FLSA, there is no clear answer to this question. However, if a deduction is made, the employee’s wages cannot fall below the minimum wage or overtime compensation in any given week. If an employee earning minimum wage breaks a printer or computer at work, the employer cannot deduct any wages. However, if the employee is earning $8.25 an hour, $1 over the minimum wage, and works 40 hours, then the employer may in certain situations deduct up to $40 in one week. The employer cannot deduct an amount that would fall below the employee’s minimum wage unless the employee consents to such a deduction. Moreover, if an employer intends to deduct an employee’s wages for any work related damages, this should be communicated to all employees as being part of the employer’s personnel policy.

Whether an employer can deduct money from an employee’s wages will depend on the individual facts of the case. An experienced employment law attorney can help you figure out whether your employer is making unlawful deductions from your wages. If you or someone you care about has experienced any type of wage and hour or overtime violation at the workplace, call the New York Overtime Lawyers at Villanueva and Sanchala at (800) 893-9645 for a free initial telephone consultation.

Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the
Fair Labor Standards Act, U.S. Department of Labor Fact Sheet #22: Hours Worked Under the FLSA, U.S. Department of Labor Fact Sheet #23: Overtime Pay Requirements of the FLSA, U.S. Department of Labor Employment Standards Administration Wage and Hour Division, U.S. Wage and Hour
Division, December 2008

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Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.