HR REPORT: NHMA Employment Law Hotline: Question and Answer Series Wage and Hour Law / Working Time

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Drummond Woodsum partners with the New Hampshire Municipal Association to provide a free Employment Law Hotline service, through which we provide general legal advice to NHMA members. We receive a number of recurring inquiries through the hotline and have established a running series in which we periodically use the HR Report to address a hot issue. Recently, there has been an uptick in questions regarding the definition of hours worked, some of which you will find below.

Question: The Town has a policy that requires employees to take a thirty (30) minute, unpaid lunch break. What should the Town do if employees continuously work through lunch?

Answer: The Town must pay employees for all hours actually worked. The rules surrounding meals and break periods can be found in the federal Fair Labor Standards Act (FLSA) and certain state laws. Under federal and state wage and hour law, rest periods of short duration, such as coffee or snack breaks of approximately twenty (20) minutes or less, must be counted as hours worked. However, bona fide meal periods, ordinarily of at least thirty (30) minutes, generally do not need to be compensated as hours worked. A meal period is considered bona fide only if the employee is in fact relieved from duty for the purpose of eating regular meals. The employee is not relieved if they are required to perform duties, whether active or inactive, while eating. Therefore, if an employer offers unpaid breaks, but frequently interrupts an employee during such break or expects an employee to perform tasks that require them to work through such break times, then the employees’ break was not bona fide, and the Town must compensate the employee for those hours worked.

In this inquiry, it does not appear that the employer is requiring the employee to work during their meal break, but that employees are instead choosing to do so. If that is the case, then the employer must still pay the employee for the work performed (because employers must pay employees for all hours actually worked), but could consider disciplining the employee for continuously violating the policy that specifically requires the employee to take a thirty (30) minute unpaid, uninterrupted lunch break.

As always, many of these questions should be analyzed on a case-by-case basis with counsel because other factors may be present that impact the answer.

Question: Is the Town required to compensate employees for time spent training where such training is a pre-condition of employment with the Town? Does it impact the question if the employee at issue is police or fire personnel?

Answer: As outlined above, the Town must pay employees for all “hours worked.” While the wage and hour statutes do not clearly define the term “hours worked,” the Department of Labor regulations define the term as including: (1) all the time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace; and (2) all the time during which an employee works or is permitted to work, whether or not required to do so. Generally, job-related training is considered compensable hours worked. For all employees, attendance at lectures, meetings, and trainings must be compensated unless: attendance is outside of the employee’s regular working hours; attendance is in fact voluntary; the course, lecture, or meeting is not directly related to the employee’s job; and, the employee does not perform any productive work during such attendance.

However, the wage and hour regulations regarding training time for police and fire personnel contain exceptions to the general rule. While, as noted above, time spent attending training required by an employer is normally considered compensable hours worked, attendance outside of regular working hours at specialized or follow-up training which is either (1) required by law for certification of public and private sector employees within a jurisdiction (for example, a certification for public emergency rescue workers) or (2) required for certification of employees by law of a higher level of government (for example, certification for fire prevention employees that is imposed by the State on Town employees) is not considered compensable time.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.