Employment Law Update

Governor O’Malley recently signed into law the “Healthy Retail Employee Act,” which mandates that some Maryland employers provide paid work breaks to certain retail employees.
Which employers are covered?

The law applies to retail establishments that employ 50 or more employees, or businesses that own one or more franchises operating under the same trade name that cumulatively employ more than 50 employees in Maryland. A retail establishment is defined by the law as a “place or business with the primary purpose of selling goods to a consumer who is present at the place of business at the time of sale.” Wholesalers and restaurants are exempted from the law.

What Type Of Break Must Be Provided?

Generally, a non-working shift break must be provided. The length of the required break varies based on the number of hours worked:

• four to six consecutive hours requires a non-working shift break of at least 15-minutes.
  
• six or more consecutive hours requires a non-working shift break of at least 30-minutes. (If the 30-minute break applies, the employee is not entitled to the 15-minute break.)
  
• eight or more consecutive hours requires an additional 15-minute break for every four consecutive hours worked beyond the eight hours.

If the employee’s shift does not exceed six consecutive hours, the 15-minute break may be waived by written agreement between the employee and employer.

Working shift breaks may be provided instead of non-working breaks if the employer and the employee mutually agree in writing to the working shift break, and either:

• the type of work prevents the employee from being relieved of his or her job during the non-working shift break, or
  
• the employee is allowed to consume a meal while working and the break is counted towards the total hours worked.

Which employees are protected by the law?

Employees who work for covered retail employers are protected, except that the following employees are not covered under the law:

• employees who are covered by a collective bargaining agreement that requires breaks equal to or greater than those prescribed by the law,
  
• employees who are exempt from overtime under the Fair Labor Standards Act,
  public employees,
  
• employees who work in a corporate office or other office location, and
  
• employees who work at least four consecutive hours for an employer at a single location with five or fewer employees.

What Are The Penalties For Violation?

Employees may file a complaint with the Commissioner of Labor and Industry. If the Commissioner determines that there has been a violation, he my issue an order compelling compliance. At the Commissioner’s discretion, he may asses a civil penalty of up to $300 for each employee for whom the employer is not in compliance with the law, or up to $600 per employee, if there have been repeat violations within three years of the Commissioner finding a prior violation of the law by the employer. Employers may appeal the finding of a violation or assessment of a fine under the State’s administrative procedures act. If the employer fails to comply with a final order of the Commissioner, the Commissioner may bring an action in circuit court to enforce the order.

Under certain circumstances where there has been a repeat violation concerning the same employee, the employee may also file suit. If the employee prevails, he/she may be entitled to three times the hourly wage for each shift break violation of the law and reasonable attorney’s fees.

When Does The Law Become Effective?

The new break requirements become effective on March 1, 2011.

If you have any questions regarding this new law, please contact Chuck Bacharach or Bob Kellner in the Employment Law Group.