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Wednesday, April 22, 2009

Please don't give me a break

Is there a law where an employee and a company can agree to take a lunch after 8 hours and not six?

California Law states after 6 hours employee must receive a break. Can employee & company agree to change this? Please help.

Funny you should ask. My very favorite legal site, Overlawyered just posted an interesting story about a United Airlines Ticket Agent who took a break. He blames the lawyers.

I love to blame lawyers. (Except for my lawyer brother, who gives me free legal advice. He's blameless.)

This really is a situation where the company's hands are tied. (Presuming you are correct on California law, that it is six hours and not something different.) They can't authorize you to skip your break.

In theory, this is because big, bad companies would force you to work until you dropped so the big good government steps in and saves us all, except for the poor couple trying to catch a flight to Oregon. (Now, let it be said, that to the best of my knowledge there is no law stipulating that a break must be taken at a precise time, just within a certain window. If United was scheduling breaks at the last possible moment then they are as stupid as the Consumerist story makes them out to be. Further more, the ticket agent was incompetent. Yes, she's required to take a break. No, you don't argue with the customer. When it became clear that he was going to argue, you say, "I'm sorry, sir. Let me get someone who can help you." And then you walk away and get someone and then go on your break.)

I'm not a big fan of government regulations on such things. I think that there are enough people, like you, who would prefer to work 7.5 hours straight and then go home, rather than working 5 hours, take a half hour, unpaid break, and then work 2.5 more hours. I used to beg to do that, but to no avail, back in my hourly days. I think that we should acknowledge that at will employment runs two ways. If I don't like how a company is treating me, I can walk away from it. Further more, if they don't want to accommodate my break prefences, they can terminate me. We're all grown ups here.

Yes, I know about how people were treated in the coal mines and meat packing plants and I've read all about the factory fires. I think we've moved a little beyond that when we're micromanaging how breaks must be taken.

But, in short, no you can't. Take your break. Bring a good novel. And furthermore, don't work when you are on break. It causes the same problems.


RJ said...

Tschuss EvilHRLady, I hope you're enjoying Switzerland.

Personally, I've never met anyone who isn't more productive over the course of a 6 hour day if they take a break.

I would insist an employee take at least half an hour, after 4 hours. Humans need rest (as all the RSI/OOS advice shows). If you want people to be creative, imaginative, and show initiative then eating through lunch is a way to make them feel productive, without actually being productive.

Forced breaks are great ways of bringing in mini-deadlines, coming back after a break is a great way to identify you've been re-writing that paragraph for an hour.

Auf wiedersehen.

Anonymous said...

RJ, that may be true for most people, but as a programmer with attention deficit disorder, I work much better uninterrupted. Breaks throw my focus badly, and the blood sugar crash I would experience if I ate lunch would mess up my concentration no end and certainly throw my productivity for hours.

I can honestly say I hate this policy. I understand why it may work for those fortunate enough to not have any syndroms whatsoever, but I at least struggle with this.

Back when I used to work for *BigBadBlueCompany* we were forced to take lunch which had me struggling to pick up the thread at all in the afternoon. I decided I had to stop eating during lunch in order to be able to work in the afternoon at all, so lunch was basically me sitting off the time, getting stressed and frustrated that A: it would be even longer before I could eat. B: even without eating I would struggle to pick up the thread and C: I would miss the last bus out and have to walk for 1hr50 to get home. Bus schedules didn't fit, so getting in early didn't help with this as first bus to last bus was a 7hrs36min gap. (I know. Infrastructure is not the strong point of this country).

Would you believe that despite never being able to eat, and two hours of fast paced walking every day, I still managed to get fat. I blame the cortisol of having to work for a d****ebag company. When I brought it up with HR, and why I had issues with it, they just said "Get in earlier" I explained that I was already getting in with the first bus. So they said, can you get a ride with someone, but the person with a car, and potential willingnes to carpool, closest to me would mean an equally long walk, just in an other direction. So they proposed I walk to work as well as home. Really? You think my journey to work should be 4hrs of walking?

In the end, it just wasn't worth it and I left. They were bad in so many other ways I don't know how to begin to count them. I hear they have serious problems recruiting to this paricular plant these days, and former colleagues are hitting the wall in droves. The HR department at this plant, despite having a good Head of HR, is known for their callousness, poor professionalism and high turnover.

They are "buying" HR from a well known staffing company. Do you think that's a good idea, EHR? My experience is that HR always works better if it is an integral part of the company, and not rented, but I may be wrong.

Rick Bales said...

If we allow companies and employees to contract around baseline legal rules, too many companies will strong-arm employees into "agreeing" to new rules that benefit only the company. It's very difficult to distinguish good-faith agreement from strong-arming, but relatively easy to tell if a bright-line legal rule has been broken. This is why the law does not allow companies and employees to contract around wage/hour rules, rules prohibiting discrimination, etc.

Ian Random said...

I guess in general my problem is that if there is a shortage of jobs, people will put up with lots of garbage, but if there isn't they can say blank this and move on. The horror stories of the 1900's seem to coincide with a surplus of labor from abroad and rural areas that were streaming into the cities. I hear that even China is having problems with labor, the peasants from the countryside are not illegally immigrating to the cities fast enough, causing wages to increase.

Anonymous said...

I think it's also the case that United would have been free under the law to staff its ticket counter with more than one person at a time.

Kelly said...

Rick and Ian both have a point. I think it's reasonable to require that companies give employees the opportunity to take a break after a certain amount of work and to expect that breaks for hourly employees are either complete free time, or are paid. (If you have to be available to answer the phone, it should be a paid break.)

I don't know the exact California law, but I wonder if people who have issues with breaks interrupting their concentration would be better served by mini-breaks. 10 here, 5 there as they need, rather than a full half hour all at once.

Just another HR lady said...

My disclaimer...I am not familiar with California law, but we do have similar legislation in Canada. The employee must receive a break "within" a six-hour period of work. This allows some flexibility as to when and how breaks are scheduled, as we can give the break at any time after 4 hours of work.

Just for my own knowledge, does the California legislation explicitly state that after working 6 hours the employee must be given a break? Or just that they must be given a break at some point within the 6-hour timeframe? If you have to give a break always and only at the 6-hour mark, that is certainly very restrictive, but I imagine companies make coverage plans in that case. (like the supervisor taking over)

bbeeman said...

And to just make (as usual) California law more horrible, there are a number of orders issued by the Industrial Welfare Commission (17 last time I looked) that set special conditions in certain types of jobs.

Note that these are not a product of the normal legislative process, but ooze out of California's immense bureaucratic swamp.

The commission devotes much of it's web site to encouraging the filing of claims, and if you read the FAQs it is apparent that an employer is in a position not unlike that of a cow going up the slaughter house ramp.

I've had experience in a number of states, but nowhere else have I encountered such mindless anti-employer bureaucracy.

I distinctly recall appearing at a hearing where we were opposing being charged for unemployment compensation for an ex-employee who had been discharged for theft and repeated time card falsification. The administrative law judge's opening line was "Why are you wasting my time. You can't win here."

That's why I'm glad to no longer be a California employer.

El Comodoro said...

Doesn't CA law also require issuance of an espresso, croissant, and beret for the mandated breaks? Could be mistaken on this.

Anonymous said...

It's not the law, it's not the lawyers. Why would the company send someone on a break and just leave the ticket counter empty? Seems kind stupid.

Anonymous said...

I've skipped thousands of breaks in California. I also sometimes don't pay meals tax on my food from WholeFoods and then take a bite on their premises in order to commit tax evasion.

I'm a very bad person.

Anonymous said...

This story, especially if you read the original account, also sounds to me like a lot of hourly employees who hate their employer and are very quick to point out to customers their company's, HR fail all the way around.

Ibn Tumart said...

@JustanotherHRlady: You are correct. Employees can take the break sometime within the six hours. It doesn't have to be right after six hours.

Despite the whining from employers, this is a good law. I know from my experience as a payroll manager in Texas that quite a few employers will cheerfully require their employees to work without breaks without even the slightest prick of conscience.

Anonymous said...

As an ex-employee of a chronically understaffed international coffee-shop chain, I can tell you that if this law did not exist, some workers would never get a break. While I understand that many laws exist because someone with a deep pocket thought that it would be a good idea, there are plenty that exist to protect us from rampant abuse. This law is clearly one of the latter. For example, as a former manager on an hourly wage, I regularly had to forgo breaks to cover for others' meal breaks. Ironically, I would be reprimanded for not taking my break.

Free Legal Advice said...

Great and informative advice thanks!