Q: I am an hourly employee at a skilled nursing facility working 12-hour shifts, three days a week. I usually work more than 12 hours per shift finishing up paperwork but we are not paid for the extra time. There are times when I am asked to work a 4th day during the week for another 12 hours but I am not paid overtime. I am cannot take my lunch breaks because I have no reliever. What are my rights?
A: Employees of the health care industry often work on what's officially called Alternative Workweek Schedules (AWS). AWS agreements are implemented by employers who require their employees to work up to ten or twelve hours per day within a 40-hour workweek without overtime pay. (The implementation of AWS must be agreed to by the employees following an election procedure regulated by law.)
Time and a Half and Double Time Payments:
All work performed in any workday beyond the schedule established by the AWS agreement up to 12 hours a day or beyond 40 hours per week shall be paid “time and a half.” All work performed beyond 12 hours per day shall be paid “double time.” Also paid double time is work done beyond eight (8) hours on those days worked outside the regularly scheduled number of workdays established by the AWS agreement. For example, if the employee already worked three 12-hours shifts for the week, and was asked to work an additional 12-hour shift on a fourth day, then the employee must be paid double time after 8 hours of work on the fourth day.
Time and a Half for Working Lesser Hours:
If the employer has an AWS agreement with its employees, but then requires employees to work fewer hours than what's stated in the agreement, the workday is treated as if it is not part of the AWS agreement and all overtime in excess of 8 hours must be paid accordingly. This acts as a short-shift penalty against the employer.
Hourly employees are entitled to a 30-minute uninterrupted meal period for every 5 hours of work. Employees on 12-hour shifts are entitled to a second 30-minute meal period. They may voluntarily waive their right to one of their two meal periods in writing only. Because the law requires a mutual agreement, an employer cannot require an employee to waive the right to a meal period.
If the meal break is not provided, the employer must pay the employee one additional hour of pay at the employee's regular hourly rate for every day that the meal break is missed. Also, when the employer fails to provide a meal break to an employee who works 12 hours per day, the 30 minutes is added as time worked. Hence, the employee may be entitled to overtime pay because the employee has now worked for 12 hours and 30 minutes. Any work beyond 12 hours per day by hourly employees is paid double time.
Employees who work 12 hours per day are also entitled to at least three 10-minute rest breaks. If the employee was not provided any of these rest breaks, the employee is entitled to an additional one hour pay at the regular rate. If an employee missed both a meal break and a rest break, the employee becomes entitled to an additional two hours of pay at the employee's regular hourly rate.
For employees working a 12-hour shift who did not waive, and were not provided, a second meal break, and were not provided a third rest break, they may be entitled to two additional hours of pay.