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posted: 6/1/2014 6:35 AM

Work Advice: Gimme a break, or at least pay me for it

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Q: I am a security officer at a private hospital, on hourly wage. I was told my hours would be from 10 p.m. until 6:30 a.m. -- eight hours with a half-hour lunch -- but there is no time when a designated lunch break is possible. I was told to eat when I can, but I am still responsible for responding to calls. My paycheck reflects a 40-hour workweek. I understand that I have to respond to incidents during my shift, but I do not feel it is right to deny me pay for a lunch break I have never taken.

A: Mealtime multi-tasking is as American as the 90-minute commute. But a worker subject to overtime rules under the Fair Labor Standards Act -- as you are -- can't legally be considered "on break" while responding to calls. According to the Labor Department's Wage and Hour Division, an unpaid meal break must be a "bona fide" break of at least 30 minutes, no working -- and it's the employer's responsibility to ensure the worker takes the break. Otherwise, you're owed pay for that time -- possibly overtime pay, if you go over 40 hours a week.

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Of course, in a hospital, emergencies happen. When they do, and you give up your break to respond, your employer needs to decide whether it would rather pay you overtime or allow you to take comp time.

Learn more at the Labor Department website (www.dol.gov/whd) or call 866-4-USWAGE. Also, check your state's labor laws, in case its break and meal provisions are more generous than federal law, says employment attorney Declan Leonard, of Berenzweig Leonard LLP in McLean, Virginia.

Q: I work at a private, for-profit enterprise where most of us work part time. I have discovered that the owner deducts a half-hour's pay per day from everyone's paycheck, regardless of whether we get a break. I usually don't, thanks to scheduling and deadlines.

I took this issue to my superior, who said the employer would "consider changing the system several weeks from now." Is this fair or even legal? Should I request remuneration for my unpaid work? I fear retaliation.

A: Not fair, not legal -- and if anyone should be fearful, it's the person skimming your paychecks.

Leonard recommends that you and your fellow part-timers collectively ask the owner to stop the automatic deductions and arrange to repay you for those nonexistent breaks. Find out whether, in future, the owner wants to have you take actual breaks, or pay you to work through them -- "neither" is not an option. If you're required to take the unpaid breaks, take them -- no eating at your desk while you "just answer a few emails." Summarize your discussion with management in writing. If things don't change, you can sue -- or instead, as Leonard puts it, get "an 800-pound gorilla on your side" by filing a complaint with the Department of Labor.

• Miller has written for and edited tax publications for 16 years, most recently for the accounting firm KPMG's Washington National Tax office. You can find her on Twitter, @KarlaAtWork.

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