Can am employer count restroom breaks as unpaid time?
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Can am employer count restroom breaks as unpaid time?
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I work for a call center; the company will remain unnamed. I am allowed the correct number of breaks and lunch hours during a day according to my state's laws, but I have a medical condition that causes me to need to use the restroom more often than the breaks and sometimes unexpectedly. My employer has been understanding so-far, in allowing me to use the restroom as needed, however I found out at the end of my last shift that I had to choose to either take those breaks unpaid or use some of my precious paid time off.
Now, I was a little taken back by this and even thought it to be a little shady. I decided to do a little research on my own and found that federal law requires breaks from 5 - 20 minutes to be paid (http://www.dol.gov/dol/allcfr/Title_29/Part_785/29CFR785.18.htm), however I cannot find anywhere if there is a minimum number of breaks an employer must allow. In other words, since they require employees to take 15 min breaks at least every 3 hours can they refuse to pay me for using the restroom, if I need to, at other times?
I would appreciate some direction as well as a reference link. By the way, I am in the state of Oregon.
Thanks!
Additional Details
I did forget to mention that I spoke with human resources about accommodation and they said the only think I could do is apply for accommodation per disability. My doctor would have to fill out a form stating that I was "disabled," (which is not the case) and I believe my breaks would still be unpaid, but I would just be within compliance for time scheduled on the phone taking calls - right now I am not in compliance because of my breaks. This also disqualifies me for any bonus incentives that I would otherwise receive.
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michr
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the breaks must be paid there is no exception to that,
the employer can discipline you but must pay you. work time is set by definition by the department of labor as you have already noted. restroom breaks are paid time.
as far as breaks are concerned federal law does not mandate ANY breaks for adults and Oregon requires a 10 minute rest period for every 4 hours of work as close to the middle of the 4 hours as business will allow:
http://www.dol.gov/esa/whd/state/rest.htm#Oregon
Oregon requires a 30 minute unpaid meal break for every 6 to 8 hours of continuous employemnt:
http://www.dol.gov/esa/whd/state/meal.htm#Oregon
you can and should make a request for accommodation but your condition may not qualify under ADA. just because you have a condition does not mean ADA recognizes it or protects your employment.
http://www.oregon.gov/BOLI/TA/T_FAQ_Disability.shtml
there is nothing wrong with having and claiming an impairment(disability).
your doctor needs to fill out the appropriate paperwork and you need to attempt to gain a "reasonable accommodation" or suffer the discipline which could be termination with "cause" if you can not perform the essential duties of the job.
sit down with HR and develop a plan to address the employers issues as well as your issues and come to a satisfactory conclusion.
you know a WIN-WIN................. |
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Don
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Check with the state Employment Division to find out what the laws are for Oregon. Most of the time an employer will be understanding, however if you are taking considerable time away from your desk for this you might get docked. If I were you I would talk to my supervisor and explain the situation and ask that since you have to take unplanned breaks you don't mind working through the planned ones if that would be ok. After all you owe the company the time and you should be willing to do your part, or face the chance of losing your job. Good Luck |
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hr4me
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Have you submitted anything to your employer about a medical need for this? A reasonable accommodation for your medical situation? You don't have to disclose all the details of what ever you health situation is, but if you let them know that this is an accommodation you are requesting of them they are going to be hard pressed to push you on it if you have filed medical notice to them.
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Mel
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Oregon state law may be different from the Federal wage and hour law on terms of whether breaks are paid or not. You would need to check with the department of labor in your state - www.dol.gov to find the closest office. You want the wage and hour division.
A rest period of 10 minutes is required for every 4 hours of work. A meal period of at least 30 minutes is required for every 5 hours of work unless the shift ends at 6 hours. Meal periods are unpaid, while rest periods are paid. The employer is not required to provide you with more frequent breaks, or to pay you for taking them.
I agree with the other posters that you may want to have your doc provide a note stating you need more frequent breaks, which would be a reasonable accommodation for your condition.
Good luck. |
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GreenShaman
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Well there is not too much you can do about it except to get a doctors excuse and if they still doc your pay then get a lawyer because if they can't make necessary and adequate accommodations for you on the job then you can make them or they will have to pay you workers comp. Though if you have had the medical condition previously to being hired and somehow did not make a note of it then there is really nothing you can do about it. |
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