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May employers round starting and stopping time for counting meal period requirements?
Yes. Rounding of time is a practice where employers will round the beginning and/or end of a
shift or meal period to an interval. For example, rounding occurs when an employee arrives at
work at 8:02 and the time records note that the employee arrives at 8:00. The Department
follows the principles set forth in federal regulations (29 CFR §785.48(b)) with regard to the
rounding of time. That regulation recognizes that rounding is commonly accepted in industry at
intervals ranging from 5 to 15 minutes and permits such rounding. Extending this rounding
regulation to the meal period requirements is proper, so long as rounding of starting and
stopping time for the counting of meal period requirements does not, over a period of time,
result in a failure provide employees with the required meal periods. In short, rounding of time
is permissible as long as it does not result in employees losing time.
Must employees be paid for breaks and rest periods?
While the Labor Law does not require that employers provide rest periods of short duration, if
they are provided to or taken by employees, they must be counted as working time. The
Department follows Federal Regulation 29 CFR §785.18 which provides that rest periods of
short duration, running from 5 minutes to about 20 minutes, are common in industry. They
promote the efficiency of the employee and are customarily paid for as working time. They
must be counted as hours worked. Compensable time of rest periods may not be offset against
other working time such as compensable waiting time or on-call time. Unauthorized extensions
of authorized work breaks need not be counted as hours worked when the employer has
expressly and unambiguously communicated to the employee that:
The authorized break may only last for a specific length of time
Any extension of the break is contrary to the employer's rules
Any extension of the break will be punished
Can employees have the option of either having meal break or leaving work earlier at the end
of a shift?
As discussed above, employees may waive their rights to a meal period under Section 162 only
if the requirements of the waiver set forth by New York courts are met. Furthermore, the
option of leaving early does not constitute a sufficient employee benefit upon which to satisfy
the third of those requirements, as it merely substitutes time off during a workday for time off
at the end of a workday. This does not mean that an employer and employee cannot agree
that the employee may work through a meal period in exchange for being able to leave work
early on an occasional basis due to employee needs. However, the employer and employee
cannot agree to such a situation on a long-term, regular basis.