This article is part of a Q&A series on important employment law topics with attorney Kevin Wicka from The Tarantino Law Firm in Buffalo, New York. You can watch or read our entire conversation here.
Kevin Wicka:
So New York has something called guidelines for meal periods, and you can find that right on the New York State Department of Labor website. And it's interesting because they call them guidelines because there are some exceptions that you can have, but they do provide the general framework and it's a little technical, but it has to do with one, what type of workplace is it? And in this one, this particular individual works in a factory. So there are very specific rules for a factory. So if your shift starts before 11:00 AM and it works for more than six hours over the lunch period, which goes from 11:00 AM to 2:00 PM in a factory, the employer is supposed to give 60 minutes for lunch. So this one, this employer is only giving 30. Now in the guidelines an employer can write to the commissioner of labor and request an exception to have a less amount of time.
Maybe that happened in this situation. I don't know. My gut is it's probably unlikely and it may might be likely that the employer in this example is doing it incorrectly, but they have to give that, then for this 10 to 12 hour shift that's going to go over the dinner period. If it starts at that 11:00 AM time goes over the dinner period, they have to give at least another 20 minutes over that dinner period. Now in a non-factory setting, the same fact pattern, you have to give at least 30 minutes for the lunch period, and those are unpaid too.
They don't have to be paid, and so that gets into the break area. That's a question of a lot of people think, "Well don't I get a coffee break or a 15 minute break? New York state does not provide for anything like that. However, if the break is generally less than 20 minutes, you're not supposed to have the employees punch out if they're what's called nonexempt employees, they're hourly employees that are paid. So if you allow a break, so let's say you give them a coffee break and it's only for 15 minutes, or a smoke break for some people, you can't make them punch out for that if it's less than the 15 minutes.
CJ Maurer:
Interesting, how many of those are they allowed to have?
Kevin Wicka:
They don't have to give them any of them, but if they allow them to happen, they can't make them punch out. So the main thing that they have to give in that non-factory setting is that 30 minute break if it's over six hours and it crosses over that particular lunch period. The other time where there's a different set of rules is if a shift starts after 1:00 PM. So between 1:00 PM and 6:00 AM, and it's going to go over that six hour period. Then and again in a factory setting, you have to give one hour for a meal time, in a non-factory setting it's 45 minutes then for that later start time. So it's a little technical getting into it, I don't want to get too bogged down into the weeds. It's almost like remembering a little bit of a logic game, but you can go right to New York State Department of Labor website and they have the guidelines right there on their website. [crosstalk 00:03:52]. There they are.