New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees

Transcription

1 New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees It is Sodexo s policy to comply with all state and local wage and hour laws including those of the State of New York. Therefore, Sodexo adopts the following policy applicable to its nonexempt (hourly paid) employees who work in New York: Employees who work a shift of more than 6 hours are entitled to a 30-minute unpaid, duty-free and uninterrupted meal period. Employees who work a shift of more than 6 hours with any part of the employee s shift included in the time period between 11:00 a.m. and 2:00 p.m., are required to take a 30- minute unpaid, duty-free and uninterrupted meal period between the hours of 11:00 a.m. and 2:00 p.m. Employees who work a shift of more than 6 hours starting between 1:00 p.m. and 6:00 a.m. are required to take at least a 30-minute unpaid, duty-free and uninterrupted meal period at a time half way between the start and the end of their shift. Employees who work a shift of more than 6 hours starting before 11:00 a.m. and continuing later than 7 p.m. are required to take an additional 20-minute duty-free and uninterrupted meal period between the hours of 5:00 p.m. and 7:00 p.m. Employees must take the meal period every day and may not waive it. If the employee s meal period is not indicated on a schedule, the employee s supervisor shall inform the employee of the time of the employee s meal period. Employees must clock, record or sign out and in for their meal period and shall not perform any work duties during the meal period. Employees who are unable or forget to record or clock out or in for a meal period must notify their supervisor immediately and record the missed punch on the Punch Exception Log, initial the entry, and have the supervisor or manager approve the entry by initialing the missed punch. Employees who are not allowed to take a meal period as set forth in this Policy should contact their supervisor, manager or Human Resources representative immediately. If you have concerns about your meal periods, you can utilize Sodexo s Promise of Respect and Fair Treatment process or contact the Business Abuse Hotline to voice those concerns. 1 September 2013

2 Compliance with Sodexo s New York Meal Period Policy for Nonexempt Employees: Employees are expected to know and comply with Sodexo s New York Meal Period Policy for Nonexempt Employees. Violations include, but are not limited to: Failure to take meal periods as instructed. Failure to report missed meal periods. Failure of nonexempt employees to clock, record or sign out and in for meal periods. Per the Sodexo Payment of Wages for All Hours Worked Policy, CP-217, accurate timekeeping of all work time and meal periods is critical. Employees who fail to comply with Sodexo s New York Meal Period Policy for Nonexempt Employees will be subject to constructive counseling, up to and including termination of employment. Employees who intentionally violate Sodexo s New York Meal Period Policy for Nonexempt Employees and/or the Payment of Wages for All Hours Worked Policy (i.e. misrepresent time worked) are subject to immediate termination of employment. Managers who fail to enforce and comply with Sodexo s New York Meal Period Policy for Nonexempt Employees will be subject to constructive counseling, up to and including termination of employment. Employees Covered by a Collective Bargaining Agreement: Employees in units covered by a collective bargaining agreement shall follow the terms of the applicable collective bargaining agreement pertaining to meal periods and/or rest breaks, if more generous than this Policy. If the applicable collective bargaining agreement is silent on the subject of meal periods and/or rest breaks, then this Policy or state law shall apply. Employees who have any questions concerning this Policy should contact their supervisor, manager or Human Resources representative. Employee Acknowledgement I acknowledge that this policy has been provided and explained to me. I understand and agree to follow this policy. Print Employee Name: Employee Signature/ Date: 2 September 2013

3 New York Meal Period Policy for Exempt Employees It is Sodexo s policy to comply with all state and local wage and hour laws including those of the State of New York. Therefore, Sodexo adopts the following policy applicable to its exempt (salary paid) employees who work in New York: Employees who work for a period of more than 6 hours shall be allowed a 30-minute meal period. Employees who work a period of more than 6 hours with any part of the employee s work period included in the time period between 11:00 a.m. and 2:00 p.m., shall be allowed to take a 30-minute meal period between the hours of 11:00 a.m. and 2:00 p.m. Employees who work a period of more than 6 hours starting between 1:00 p.m. and 6:00 a.m. shall be allowed to take at least a 30-minute meal period at a time half way between the start and the end of their work period. Employees who work a period of more than 6 hours starting before 11:00 a.m. and continuing later than 7 p.m. shall be allowed to take an additional 20-minute meal period between the hours of 5:00 p.m. and 7:00 p.m. Employees who are not allowed to take a meal period as set forth in this Policy should contact their manager or Human Resources representative immediately. If you have concerns about your meal periods, you can utilize Sodexo s Promise of Respect and Fair Treatment process or contact the Business Abuse Hotline to voice those concerns. Compliance with Sodexo s New York Meal Period Policy for Exempt Employees Employees are expected to know and comply with Sodexo s New York Meal Period Policy for Exempt Employees. Managers who fail to enforce and comply with Sodexo s New York Meal Period Policies for Exempt Employees and Nonexempt Employees will be subject to constructive counseling, up to and including termination of employment. September 2013

4 New York Meal Period Compliance Manager Oversight and Enforcement To comply with Sodexo s New York Meal Period Policy, managers must: Post the New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees where other notices to employees are posted. Schedule and post nonexempt employee meal periods. Provide a 30-minute duty-free meal period during the required hours for the employee s particular shift to employees working more than 6 hours. Provide an additional 20-minute meal period if the employee s shift starts before 11:00 am and continues past 7:00 pm. Remind employees when their meal periods are scheduled. Ensure coverage is available so that employees can take an uninterrupted 30 minute or 20-minute meal period. Ensure frontline and nonexempt, administrative, technical, and professional employees clock, record or sign out and in for their 30-minute and 20-minute unpaid meal periods. Review time records on a daily basis if possible. Review the New York Meal Period Policy for Nonexempt Employees with new employees on the first day during orientation. Have the employee sign the Employee Acknowledgement at the end and place in the personnel file. If an employee refuses to sign the Employee Acknowledgement, sign and date the form yourself to indicate when you provided and reviewed the policy with the employee. Note on the document the employee s refusal to sign and place in the employee s personnel file. Review the requirements of the New York Meal Period Policy for Nonexempt Employees with existing employees on a regular basis. Enforce the policy. Hold employees accountable for taking their meal periods as required. Promptly take disciplinary action according to the Constructive Counseling process or the disciplinary procedures provided in the applicable collective bargaining agreement. Always act consistently. Review the New York Meal Period Policy for Exempt Employees with your managerial staff. Lead by example and take your own meal period. Sodexo relies on its managers to ensure it complies with New York s meal period requirements. Accordingly, managers who fail to comply with the policy will be subject to discipline up to and including termination of employment. If you have any questions about the policy or your responsibilities, contact your HR representative.

5 New York Meal Period Compliance Employee Constructive Counseling for Nonexempt Employees Employees are expected to know and comply with Sodexo s New York Meal Period Policy for Nonexempt Employees. Violations include, but are not limited to: Failure to take meal periods as instructed Failure to clock, record or sign out and in for meal periods Failure to report missed meal periods to the supervisor or manager Employees who unintentionally fail to comply with Sodexo s New York Meal Period Policy for Nonexempt Employees will be subject to constructive counseling as follows: For initial violations, deliver a Written Coaching. For second violations, deliver a Written Warning, review the policy with the employee and have the employee sign the New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees. For third violations, deliver a second Written Warning, review the policy with the employee and have the employee sign the Employee Acknowledgement for Nonexempt Employees again. For fourth violations, employees may be subject to termination. Review the facts with your Human Resources representative. Employees who intentionally violate Sodexo s New York Meal Period Policy for Nonexempt Employees (for example: misrepresent time worked) are subject to immediate termination of employment. All Constructive Counseling Notices must be placed in the employee s personnel file. Template Constructive Counseling Notices are provided to assist you in documenting written coaching and written warning actions. If you need assistance, contact your Human Resource representative.

6 NEW YORK MEAL PERIOD Q&A Q1. Do employees have to punch, record or sign out and in for meal periods? A. Absolutely. It is important documentation to confirm employees have received their 30-minute meal period as required by state law. Q2. Can an employee voluntarily decide to work through her meal period? A. No. An employee must take the meal period(s) he/she is eligible for. However, if there is a collective bargaining agreement that provided for a waiver of the statutory meal periods in exchange for additional rest breaks or meal periods scheduled at other times, employees may waive their rights under the Labor Law. Q3. Can I require an employee to take a meal period at her workstation? A. No. An employee must be relieved of all work duties during the 30-minute meal period. There is one exception. If an employee is the only employee on duty or is the only employee in a specific occupation that cannot be covered by another employee, the employee can eat on the job without being relieved of all duties. The employee must voluntarily agree to this arrangement in writing and must be paid for this time. If you have a situation like this, contact your HR Director to discuss and if eligible, receive the One Employee Shift Voluntary Meal Period Agreement form. Q4. Can I allow an employee to work through her meal period so that she can leave work 30 minutes early? A. No. Working through a meal period does not entitle an employee to leave work prior to her scheduled quitting time. 1

7 Q5. Can I require my employees to stay on the work premises during their meal periods? A. There is nothing in the New York Labor Law that states an employee must be permitted to leave the work premises during their meal period as long as the employee is completely relieved of all his duties during the meal period. Employees who are required to remain at their desk or workstation during their meal periods are, in general, not considered to be completely relieved of their duties. Q6. All my employees start at the same time each day. Do I have to give them their meal period at the same time? A. No, employees do not have to have the same meal period if they start their shift at the same time. Q7. We are very busy during lunch time. I cannot send employees for their 30-minute meal periods between 11 a.m. and 2 p.m.. What should I do? A. You will have to be creative with the schedule to meet this requirement of New York state law and Sodexo Policy. Cross-training your employee is important. You may have to hire a part time employee to cover meal periods during these hours. Q8. If employees are OK with it, can I schedule meal periods at a time other than time specified in the policy and state law? A. No, employees meal periods must be scheduled during the time frame specified for their particular work schedule. 2

8 Q9. When do I have to provide employees a second meal? A. Employees who start work before 11:00 a.m. and will work beyond 7:00 p.m. are entitled to a second meal period of at least 20 minutes between 5:00 p.m. and 7:00 p.m. Q10. When only one employee is on duty, is that employee required to be provided with an uninterrupted meal period? A. In some unique situations where only one employee is on duty or is the only one in a specific occupation that cannot be relieved by another employee, it is customary for the employee to eat on the job without being relieved. The Department of Labor will accept these unique situations as compliant with the New York Labor Law where the employee voluntarily consents to the arrangement. The employee must acknowledge the acceptance of arrangement in writing (use the Sodexo New York One-Employee Shift Voluntary Meal Period Agreement available from your HR Director) and the employee must be paid for the on duty meal period. Contact your HR Director to discuss the particular situation and its eligibility for one-employee shift meal period agreements. Q11. I thought employees got 45-minute meal periods if they started work any time between 1:00 p.m. and 6:00 a.m. Why does our policy state 30-minute meal periods? A. The New York Department of Labor will permit a shorter meal period of not less than 30-minutes as long as there is no indication of hardship to the employees. 3

9 Q12. How do I ensure that employees are receiving and taking their required meal periods? A. Scheduling meal periods and posting the schedule ensures employees receive their required meal periods. Review time records on a daily basis if possible. If the time records reveal there is: (1) no clocking, recording or signing out and/or in for the 30-minute meal period or the 20-minute second meal period, or (2) a meal period is less than 30 minutes; or (3) the second meal period is less than 20 minutes: 1. Discuss the time record with the employee and record the reason on the time record. Have the employee sign or initial the notation on the Punch Exception Log, Time Card Approval Report if using Labor Management or the Manual Timesheet. 2. If the employee states the missed or short meal period occurred because of personal reasons unrelated to work requirements proceed with the appropriate constructive counseling step using the Constructive Counseling Notice. Remind the employee of the obligation to take meal periods according to Sodexo s New York Meal Period Policy for Nonexempt Employees and review the policy with the employee again. 3. If the employee states that he did, in fact, take a meal period but forgot to clock, record or sign out or in, proceed with the appropriate constructive counseling step using the Constructive Counseling Notice. Remind the employee of the obligation to take meal periods according to Sodexo's New York Meal Period Policy for Nonexempt Employees and to clock, record or sign out and in for their meal periods. 4. Ensure all Punch Exception Logs, Time Card Approval Reports and Manual Timesheets are maintained with other time records for the pay cycle. 4

10 Q13. Am I allowed to adjust the schedule for meals periods from one workday to the next, or does the meal period schedule need to be fixed? A. There is no requirement that the scheduling of meal periods be fixed. The law permits flexibility in scheduling meal periods on a day to day basis within the required timeframe based on the employer's operational needs. Q14. If an employee starts a meal period, but is interrupted to do work, what should we do? A. If an employee is interrupted to do work, the employee must be paid for the time the employee had clocked out prior to being interrupted. In other words, if a nonexempt employee does not take a full 30 minutes for their meal period, the employee must be paid for the short meal period. If an employee is eligible for the second 20-minute meal period, that meal period is unpaid. However, if the employee is interrupted to do work and therefore does not take the full 20 minutes for the second meal period, the employee must be paid for that short meal period. Q15. Do I have to provide rest breaks to my employees? A. No. New York law does not require rest breaks. However, a unit may voluntarily choose to provide paid rest breaks to employees. If so, it is critical rest breaks are fair and equitable for all employees. Q16. Can I provide my employees with rest breaks even though they are not specified in the policy? A. Yes, you can provide paid rest breaks if your operation allows. However, it is important rest breaks are made available to all employees and not just a select few. 5

11 Q17. Are smokers entitled to rest breaks? A. No. Smokers are not entitled to additional rest breaks if rest breaks are provided to employees. Q18. How does the policy apply to employees who are scheduled for two shifts? A. Employees working two shifts in a day with more than 60 minutes between shifts are entitled to the meal periods based on the number of hours in each individual work shift. For example, if an employee works 4 hours in the morning and another 4 hours in the late afternoon, the employee would not be entitled to a meal period on either shift. However, if the employee worked 4 hours in the morning and then 6 ½ hours on the second shift, the employee would be entitled to a 30-minute meal period on the second shift. In addition, the employee would be eligible spread of hours pay since the time between the start time of the employee s work day and the end time of the employees work day is greater than 10 hours. Q19. I have employees scheduled to work 10 hours and sometimes longer. What is an employee entitled to if they work 10 or more hours? A. Employees who work 10 or more hours are entitled to one (1) 30-minute, or one (1) 30-minute and one (1) 20-minute meal period depending on the start time and length of the employee s shift. You can provide an additional meal period based on your operational needs if the employee is only entitled to one meal period. In addition, if the employee works more than 10 hours, the employee would be eligible for spread of hours pay. 6

12 Q.20. What do I do if an employee refuses to sign the Employee Acknowledgement on the Sodexo New York Meal Period Policy for Nonexempt Employees? A. If an employee refuses to sign the Employee Acknowledgement, simply sign and date the Employee Acknowledgement yourself to indicate the date you provided and reviewed the policy with the employee. Note the employee s refusal to sign and place it in the employee s personnel file. You should remind the employee, however, that failure to follow the New York Meal Period Policy for Nonexempt Employees is grounds for constructive counseling, up to and including termination, and the employee s refusal to sign the Employee Acknowledgement does not excuse him or her from that obligation. Q21. What do I tell employees who have questions about past failure to provide the meal periods outlined in the New York Meal Period Policy for Nonexempt Employees? A. If employees seek additional information about the reason for the Employee Acknowledgement or if they raise specific complaints about past practices, please tell them to contact their Human Resources representative directly and provide the employee with the HR contact information. Q22. Do the state law and the Sodexo New York Meal Period Policy for Nonexempt Employees apply to my Admin Assistant and Chef (Class Code 4 positions)? A. Yes. New York state law and Sodexo Meal Period Policy for Nonexempt Employees do apply to administrative assistants, chefs, and any other nonexempt administrative, technical and professional employees. It applies to all nonexempt (hourly paid) employees, not just the frontline employees paid using time clocks. 7

13 Q23. Does the state law apply to my exempt managers? A. Yes. Follow the New York Meal Period Policy for Exempt Managers. Q24. I manage client employees. Do I post Sodexo s policy and have employees sign the Employee Acknowledgement on the policy? A. No, you should not post a Sodexo policy or have the client employees sign a Sodexo employee acknowledgement. Consult with the client s Human Resources representative to discuss what resources they have available to educate and keep the employees informed of New York state requirements. Q25 I have employees that use pagers for their work. How do I ensure they are not interrupted during their meal periods? A. Employees should be instructed to turn off their pagers, radios, beepers etc. and log out of any work assignment systems before the start of their meal periods. If the device cannot be turned off, it should be turned over to a manager, supervisor or other employee. Q26. Is there a poster on meal periods? A. There is no New York State meal period poster. The Sodexo New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees must be posted in an area accessible to employees (i.e. on the employee bulletin board or near the time clock). The policy is available in English and Spanish. 8

14 Q27. I supervise union employees. Do I implement this policy in my unit? A. You should check the collective bargaining agreement and see what it says about meal periods and rest breaks. If the collective bargaining agreement is more generous than Sodexo s policy and New York law on meal periods, then follow the union contract. For example, some agreements may provide for 45- minute meal periods, instead of the New York minimum of 30-minute meal periods. If New York law or Sodexo s policy is more generous than your union contract on meal periods, follow the more generous policy or state law. Follow the union contract on any rest break requirements. If the union contract does not have a provision covering meal periods, then you should follow Sodexo s policy. However, before applying Sodexo s policy or distributing the New York Meal Period Policy and Acknowledgement Form for Nonexempt Employees to employees, you must consult with your Labor Relations representative. Additionally, when applying Sodexo's policy, you do not want to act contrary to any other part of the union contract. For example, any discipline under Sodexo s New York Meal Period Policy for Nonexempt Employees must be consistent with the disciplinary process provided in your union contract. Please consult your designated Labor Relations representative for information specific to your location. 9

15 Q28. What are the consequences if I don t follow the New York Meal Period Policies? A. A manager has the responsibility to comply with the policy and state law. Failure to do so creates great risk for Sodexo. Claims for violations of New York meal period laws can be very costly. Managers not complying with the policies will be subject to constructive counseling up to and including termination of employment. 10