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ORANGE COUNTY SHOP TALK

Hourly Employees Must Be Paid to Work on Break

February 25, 2001

Q: I am an assistant manager at a store where we are scheduled for nine-hour shifts, taking an hour unpaid break.

Recently, we have been short-handed, and my boss wants me to work through my break without getting paid. Is there a law against this? Could I refuse to work during my break even if my employer offers to pay?

--B.H., Los Angeles

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A: The answer depends on whether assistant managers at your store are hourly, nonexempt employees or salaried, exempt executives.

If they are hourly employees, they are entitled to overtime pay when they work more than eight hours a day or 40 hours a week. In addition, they would be entitled to a meal period of half an hour and two 10-minute rest breaks every nine-hour shift.

Salaried, exempt employees are not entitled either to overtime or to meal and rest breaks.

Employees are presumed to be nonexempt, hourly employees unless they meet two tests.

First, exempt employees must be paid a salary that is more than twice the state minimum wage of $6.25 per hour, calculated on a monthly basis. For full-time employees, the minimum monthly salary is $2,163.

Second, exempt employees must spend more than half their work time performing exempt duties--work that requires discretion and independent judgment.

In addition, to qualify under the executive exemption, the employee must manage the enterprise or one of its departments, customarily and regularly direct the work of two or more employees, and have the power to hire or fire other employees or to recommend such actions.

If you are a nonexempt employee, you are entitled to one hour of pay every time you are denied an unpaid lunch break lasting at least a half hour. In addition, you should receive nine hours' pay whenever you work through your hour lunch break during a nine-hour shift. The ninth hour is overtime, and should be paid at 1 1/2 times your regular rate.

To make a claim for the one-hour penalty or the overtime premium, you should contact the California labor commissioner or consult an experienced employment attorney.

Finally, you should not refuse your employer's request to work through your lunch break. Since the law provides a penalty (one hour's pay) for a violation of your right to an uninterrupted lunch break, a court would probably view your refusal to work through lunch as insubordination, an offense that ordinarily warrants discharge, rather than as unlawful retaliation for exercising rights that are protected by California's wage and hour laws.

You could be the test case, however. There are no published decisions directly on that point.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

IRS Can Penalize Firm for Denying Access to 401(k)

Q: I am a full-time employee working for a company based 800 miles away from my office (I am alone).

Recently, I found out the company instituted a 401(k) plan and "forgot" to inform me or let me participate. The 401(k) had been in place more than a year.

Of course, they allowed me to join on the next payday, but I feel I am owed something for the taxes I paid on the income as well as any matching contributions the company made while I was "left out."

What can I do? --P.D., Anaheim

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A: The Internal Revenue Service would undoubtedly take the position that the failure to allow you to participate in the plan would warrant the loss of the plan's tax-qualified status under the Internal Revenue Code.

This would have adverse tax consequences to both the employer and to the employees who participate in the plan.

If the employer does not wish to correct this problem, you may want to contact the local office of the Pension and Welfare Benefits Administration of the U.S. Department of Labor, which is in Pasadena. (The IRS does not get involved in disputes between employees and employers.)

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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