Shift Breaks - The Healthy Employee Act Frequently Asked Questions (FAQs)- Employment Standards Service (ESS)

1. Who is covered by the Healthy Retail Employee Act (hereinafter "the Shift Break law")?
2. Are employees on commission covered by the Shift Break law?
3. What employers with retail establishments are covered by the Shift Break law?
4. If an employer has some employees working in the state and some employees working out of State, which employees count toward the 50 needed for coverage?
5. If an employer owns several franchises, do the employees working at different franchises around the State count toward 50?
6. If a business provides some services and some retail sales (i.e. a beauty salon that sells beauty products, an auto repair shop that sells floor mats, wiper blades, etc.) are they covered by the Shift Break law?
7. What percentage of business must be provided in person in order for the Shift Break law to apply? For example, if the employer engages in significant Internet and phone sales but also has in person sales at the establishment are their employees covered?
8. If I work for an employer covered by the Shift Break law, what break am I entitled to?
9. When is an employee entitled to take their break?
10. My employer says that I can have a "working shift break"? What is a working shift break and is it allowed?
11. Will I be paid for time that I am on break?
12. Are there recordkeeping requirements for employers under the Shift Break law?
13. What should I do if I think I have been denied a break that I am entitled to under the Shift Break law?
14. What does the Commissioner do with the complaint?
15. What happens if the Commissioner cannot resolve the complaint informally?
16. What if an employer has more than one violation in a three year period against the same employee?
17. The following are hypothetical situations to provide further guidance on the Shift Break law:

1. Who is covered by the Healthy Retail Employee Act (hereinafter "the Shift Break law")?
Employees who work in certain retail establishments (see FAQ #3 for which employers and retail establishments are covered) are entitled to a non-working shift break depending upon the number of hours worked. However, certain employees are exempt including the following:

1. Employees covered by a collective bargaining agreement or other employment policy that provides for shift breaks of equal or greater duration to those required by this law;
2. Employees exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA) including executive, administrative and professional employees, as well as employees engaged in outside sales work. Commissioned sales employees of retail or service establishments (see FAQ #2).
3. Employees of the State, or a county or municipality within the State;
4. Employees who work in a corporate office or other office location; and
5. Employees who work at least 4 consecutive hours for an employer at a single location with five or fewer employees.

2. Are employees on commission covered by the Shift Break law?
Employees who are commissioned sales employees of retail establishments are exempt from the Shift Break law if: (1) more than half of the employee's earnings come from commissions; and (2) the employee averages at least one and one-half times the minimum wage for each hour worked.

3. What employers with retail establishments are covered by the Shift Break law?
A covered employer is an employer who is engaged in a retail business or retail franchise with the same trade name with 50 or more retail employees for each working day in the last 20 or more calendar weeks.
In addition to satisfying the requisite number of employees and length of time worked, a covered employer is an employer who has a retail establishment whose primary purpose is to sell goods to a consumer with the consumer present in the retail establishment at the time of sale.

4. If an employer has some employees working in the State and some employees working out of State, which employees count toward the 50 needed for coverage?
The Shift Break law applies to employers with 50 employees who work in the State of Maryland.

5. If an employer owns several franchises, do the employees working at different franchises around the State count toward 50?
Yes. A franchise owner with multiple locations would need to count all employees who work in the State of Maryland.

6. If a business provides some services and some retail sales (i.e., a beauty salon that sells beauty products, an auto repair shop that sells floor mats, wiper blades, etc.) are they covered by the Shift Break law?
If a business provides some services and some retail sales then the establishment is covered by the Shift Break law so long as more than 50% of the total gross from sales of the business is from retail. The primary purpose of the establishment must be to sell goods to consumers.

7. What percentage of business must be provided in person in order for the Shift Break law to apply? For example, if the employer engages in significant Internet and phone sales but also has in person sales at the establishment are their employees covered?
Establishments where more than 50% of the sales of goods are made over the Internet or by mail or telephone are not covered by the Shift Break law. However, if an employer has a physical location where the primary purpose (more than 50% of sales) is to sell goods to a consumer who is present at the time of sale, then that establishment is covered by the Shift Break law, even if there are some internet, mail, or telephone sales (less than 50%).

8. If I work for an employer covered by the Shift Break law, what break am I entitled to?

* For employees working less than 6 consecutive hours, the 15 minute break requirement may be waived by written agreement between the employer and employee.
** An employee who is entitled to a 30 minute break is not entitled to the 15 minute break as well
** The additional consecutive hours begin following the employee's previous break. For example, if an employee works a 10 hour shift and is given a 30 minute break at hour 5, the employee would be entitled to a 15 minute break at hour 9.

9. When is an employee entitled to take their break?
While the Shift Break law does not specify when an employee will take their break, employers and employees should work together cooperatively to determine when an employee will take a break required under the law. When working cooperatively, the employer and employee should take into consideration both the employer's business practices as well as the individual needs of the employee.

10. My employer says that I can have a "working shift break"? What is a working shift break and is it allowed?
Any employer can provide a "working shift break" in the following circumstances:

• the type of work prevents the employee from being relieved of work; or
• the employee is permitted to consume a meal while working, the employee is paid for this time, and the employer and the employee mutually agree in writing to the working shift break.

Maryland wage law requires that you be paid for all time worked. If you were not paid for a working shift break, you may file a claim for your unpaid wages with the Commissioner of Labor and Industry. A copy of the claim form is available on our website.

11. Will I be paid for time that I am on break?
The Shift Break law requires that certain employers provide breaks to certain employees. This Maryland law does not address whether an employee is paid during their break time. However, under the Federal Fair Labor Standards Act, short breaks of less than 20 minutes (i.e. a coffee break or bathroom break) are considered work time that should be included in the sum of all hours worked in a week and are compensable. For more information on short breaks, see the U.S. Department of Labor's website.
If you feel that you have not been compensated for your break and you should be, you may contact the U.S. Department of Labor by calling 1-866-4USWAGE (1-866-487-9243), or visiting the Department's website.

12. Are there recordkeeping requirements for employers under the Shift Break law?
Yes. Employers are already required to maintain records of the times and hours worked. In addition to this existing requirement, employers will need to keep records documenting employee breaks. This is necessary to ensure compliance with the law.

13. What should I do if I think I have been denied a break that I am entitled to under the Shift Break law?
An employee who feels that their rights have been violated under the Shift Break law may file a complaint with the Commissioner of Labor and Industry (download a Shift Break Complaint Form (Word) or Queja por transgresion de la ley de empleados minoristas saludable (HREA) (Word)). If you have any questions, you may email the Employment Standards Service at dldliemploymentstandards-labor@maryland.gov or call 410-767-2357

14. What does the Commissioner do with the complaint?
Upon receipt of a complaint, the Commissioner will investigate the complaint and try to resolve the matter informally.

15. What happens if the Commissioner cannot resolve the complaint informally?
If the Commissioner determines that an employer has violated the Shift Break law, the Commissioner can issue an order to compel or force compliance, which can include a civil penalty. An employer has the right to appeal the order to the Office of Administrative Hearings.

16. What if an employer has more than one violation in a three year period against the same employee?
If an employer fails to comply with an order to compel compliance after the employer was already found to have violated the Shift Break law against a certain employee within the last three years, the employee may bring an action to enforce the order in circuit court. If the employee prevails in his/her action, the employee may be entitled to three times the employee's hourly wage, reasonable attorney's fees and other costs.

17. The following are hypothetical situations to provide further guidance on the Shift Break law:

1. I am an employer engaged in the retail business in Maryland. I have approximately 50 employees working in the state, however, only 40 of them are retail employees who do sales work in the stores or over the telephone. The remaining employees work in an office performing support services such as human resources, computer support, accounting, office, clerical and bookkeeping work. Is my business covered?
   No. The law applies to retail businesses with 50 or more retail employees. If only you have only 40 employees engaged in actual sales in a store, the law would not apply to you.
    
2. I am an accountant for a large retail company with numerous stores in Maryland. I occasionally visit the stores, but spend the majority of my time working out of a corporate office. Am I entitled to a shift break?
   No. You are assigned to work in a corporate office or other office location. Additionally, you may be a professional employee and excluded from the overtime pay requirements of the Fair Labor Standards Act, and therefore exempt from the Shift Break law on that basis as well.