The Law at Work: Working through lunch, FMLA leave, Layoff considerations
by Beth O'NealWorking through lunch
I have a small office with one full-time receptionist. She is a great team player and usually stays at her desk during her scheduled lunch hour. During that time, she eats at her desk while surfing the Web or reading, but she still answers calls and greets customers. I have suggested that she just enjoy the break, but she says she prefers to stay at her desk and doesn’t mind getting the phone. Since she is basically volunteering to help us out during her lunch, she is not paid during this time. Is there a way I should document this to make sure the company has a record that she was not required to work during her lunch?
This situation is very common in small offices – employees simply stay at their desks to relax during breaks and lunch because the office doesn’t have a separate eating area or co-workers are scheduled to have time off at different times, making it difficult to socialize. You are correct to notice that this practice can create issues for employers, but simply documenting the situation is not the appropriate way to handle your employee’s behavior.
The Fair Labor Standards Act and the Massachusetts Wage Act govern the payment of wages, which also address the topic of meal and rest breaks. Your receptionist is performing work during her lunch hour because she is answering phones and greeting customers, both of which provide a benefit to the business. The fact that you “suggested” that she enjoy the break is insufficient to permit you not to compensate her for the time she spends working for you during her lunch hour. Simply, it is unlawful for you to permit an employee to work for you without paying him or her at least the minimum wage. If you do not want to pay her during her lunch hour, you must instruct her to stop performing work activities; otherwise you will need to pay her at least the minimum wage (and, obviously, time and a half if she works more than 40 hours in one workweek).
A reasonable way to approach this situation (i.e., not wanting to pay her for her lunch period) so as not to discourage her enthusiasm, is to have a discussion with her expressing that you appreciate her willingness to help, but that you must insist that she be relieved of her tasks during this time and that you have a voicemail system that will handle all calls. Because she likely is seated at the front of the office, you may have to be creative with respect to finding a solution to greeting and helping incoming customers as they won’t understand why the receptionist is ignoring them. You may consider permitting her to use a vacant office, installing a picnic bench behind the office, or designating a common lounge area in the building. If none of these solutions are feasible, you may need to simply arrange with another employee to either cover her desk or be available to greet customers as they arrive.
FMLA Leave
One of my employees requested two weeks of FMLA leave to care for her young son, who is scheduled for major surgery in a few months. We have never offered leave to care for family members because I thought only large companies were required to permit leave to care for family members. Can you tell me whether I need to give her this time off and whether the leave has to be paid?
The Family and Medical Leave Act is a federal law that permits eligible employees of a covered employer to take job-protected leave of up to 12 workweeks in any 12-month period for any of the following reasons: (1) because of the birth of a child and in order to care for the child; (2) to care for a child placed with the employee for adoption or foster care; (3) because the employee is needed to care for a family member (child, spouse or parent) with a serious health condition; and (4) because of the employee’s own serious health condition.
Generally, employers who employ 50 or more employees for at least 20 weeks during the current or preceding year are covered by the FMLA. In order for an employee of a covered employer to be eligible for FMLA leave, the employee must have been employed for at least twelve months; have worked for at least 1,250 hours in the 12-month period preceding the leave; and be employed at a worksite where there are 50 or more employees working for the employer within 75 miles.
The FMLA does not require employers to pay employees during the leave, but in some cases, employees may be permitted to use accrued paid leave (e.g., vacation, sick, etc.) if they choose to do so or if the employer chooses to require them to do so. As is the case with many employment laws, the regulations regarding FMLA leave are very specific and quite detailed with respect to qualifications for leave, definitions of eligible reasons, and the leave itself. For example, the age of the employee’s child can affect whether the leave may qualify as FMLA leave. Therefore, if your business employs approximately 50 employees or did so last year, you should consider consulting an attorney to help you understand whether your business may be subject to the FMLA and if so, to identify the information you need to obtain from your employee who is requesting leave. The Department of Labor’s Web site is also a good resource for basic information regarding the FMLA.
Layoff considerations
I am starting to think about retiring and I have begun winding down my business. I have been taking on fewer clients and don’t have the volume of work that I used to handle. I have many employees that have been with me for years, but I won’t be able to keep all of them busy, and it will be more difficult to pay them as we go forward. What is the best way to handle a layoff? Should I provide a severance package, and if so, what should the package include?
Generally, a layoff itself is not subject to state or federal law, provided that you employ fewer than 100 workers and you are not laying off more than 50 people. If your business does employ approximately 100 people, you should contact an employment attorney to help you evaluate whether you are subject to the Worker Adjustment and Retraining Notice (“WARN”) Act, a federal law, which has specific requirements for covered employers to follow before and during a layoff. Even if you are not covered by the WARN Act, depending on your size, you may be subject to federal and state antidiscrimination laws that might protect the employees you choose to lay off. For purpose of this brief answer, it is assumed you will be selecting employees for layoff based on nondiscriminatory, objective criteria.
The way in which you approach a layoff is dependent on many factors, including your business needs, the amount of time you have before retirement, the funds available for payments and the alternate job prospects for your employees. Provided that all of your employees are employees-at-will (meaning that you don’t have employment contracts, and therefore you are able to terminate their employment at any time for any reason or no reason and they are free to quit at any time for any reason or no reason), you are not otherwise required to make any extra payments upon a layoff or termination. Many employers do choose to either provide a lump sum or keep the employees on the payroll for a period of time to show appreciation for their employees’ years of service and contributions to the business and to ease their employees’ transitions to the next jobs. The amount of severance is usually dependent on the employees’ wages or salary, position, and tenure. In addition to cash, severance payments may also include health care coverage for a period of time, in addition to the federally mandated continued access to coverage, commonly called COBRA. Employers usually condition the severance payments upon the employee’s release of potential claims against the employer. Depending upon the age of the employee signing the release and how many employees are being laid off, there are very specific requirements under federal law concerning what the release language must state, as well as information that must be provided to the employee being laid off regarding the job titles and ages of other employees being retained and laid off.
Before you make any final decisions regarding a layoff, you should consider enlisting the services of several professionals to help you with the transition; for example, an employment attorney, a financial adviser or accountant, and a business consultant to ensure that you are planning effectively as you approach retirement and to help you explore other options which may not require a layoff.
Employer alert
The U.S. Bureau of Citizenship and Immigrations Services has issued a new I-9 Employment Eligibility Verification form. To obtain the new I-9 form, go to uscis.gov. Employers should carefully review the instructions and the List of Acceptable Documentation.
Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. Send questions to meo@mctlaw.com.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Masterman, Culbert and Tully LLP or its attorneys. In compliance with U.S. Treasury regulations governing tax practice, any U.S. Federal tax advice contained in this publication is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties or in connection with the promoting, marketing or recommending to any individual of any transaction or matters addressed therein.
Published in Cape Business January/February 2008
Beth O'Neal Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. 
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