The Twelve Hour Day Problem (10/4/2007)

By Michael Saqui and Anthony Raimondo

What can an employer do to schedule the required meal and rest periods during the season when employees work a twelve hour schedule? Such schedules are common in the cotton ginning industry, and in other agricultural segments as well.

Under the question presented, the employees are paid for 12 hours. Many employees like taking three paid 20 minute breaks (which often work out to about 25 minutes of lost productivity – for a total of one hour and 15 minutes of lost productive time). Thus, the actual productive time on a 12 hour shift is 10 hours 45 minutes - 11 hours with employees paid for 12 hours.

Basic Legal Requirements for a 12 hour shift:

· 2 meal periods, each occurring after no more than five hours of work. The second can be waived by mutual agreement, as long as the employee works less than 12 hours.

· 3 10 minute paid breaks (ten minutes for every 4 hours of work or major fraction thereof). The rest breaks must occur as near to the middle of the work period as is practicable.

· On-duty meal periods will not resolve this problem, because the Labor Commissioner is notoriously hostile to such agreements, and will not allow them to be used to accommodate the employer’s production requirements.

Problems:

· Disruption of production – It is difficult (or impossible) to provide relief and stagger 4 non-productive break times.

· Labor relations – Employees are used to and like having three breaks when they can eat, and may be upset at a change in the schedule.

Proposed Solution:

The employer came up with the following solution:

· 2 duty free “meal periods” – 30 minutes each (actual work time to 11 hours)

· 1 authorized “rest break” – 15 minutes

· 1 hour paid as a penalty for missed rest breaks (2 rest breaks denied)

The proposed solution is likely to be the best solution, as it involves no increase in labor costs, and provided the down times are strictly enforced, results in no loss of productive time. The key is that under the law, the penalty for the rest break violation is one hour of pay at the employee’s regular rate of pay, no matter how many rest breaks are denied.

In order to implement the solution, the following guidelines must be followed:

· Recordkeeping: Employees must clock out for the two thirty minute meal periods. Otherwise, there will be no record of the meals and the Labor Commissioner will presume the one hour premium was paid for time spent working during the 30 minute breaks. Also, the one hour premium paid for the missed rest break must be reflected in Company records as premium pay for the rest period problem.

· Scheduling: Employees must not work more than five hours before taking the thirty minute meal periods. Employees must be free to leave if they wish. It does not matter if there is nowhere they can go in the 30 minute periods, they must be free to go if they wish.

· Enforcement: In order to avoid a loss of productive time, the down time has to be closely monitored.

This is an excellent example of a creative solution to a sticky meal and break problem, taking into account labor costs, productivity, legal compliance, and labor relations..