Are Assistants Working 29 Hours Full Time Employees?

[rocknrolls2]

Employer X operates a number of elementary schools within a specific geographic area. To limit costs and expenses (especially with respect to health care), it has proposed to limit employees it classifies as assistants to work no more than 29 hours per week. Assume that assistants are given one hour off for lunch for each day that they work, of which 30 minutes are paid and the rest is unpaid. Does Employer X have to include the lunch break in determining whether assistants are full-time employees? If so, would it only count the paid hours or would it also have to count the unpaid 30 minutes during an assistant's lunch break? Thank you.

[J Simmons]

Employer X operates a number of elementary schools within a specific geographic area. To limit costs and expenses (especially with respect to health care), it has proposed to limit employees it classifies as assistants to work no more than 29 hours per week. Assume that assistants are given one hour off for lunch for each day that they work, of which 30 minutes are paid and the rest is unpaid. Does Employer X have to include the lunch break in determining whether assistants are full-time employees? If so, would it only count the paid hours or would it also have to count the unpaid 30 minutes during an assistant's lunch break? Thank you.

I think you have to count the 30 minutes paid for lunch breaks when totaling up the hours of service. Those 30 minutes are time for which paid or entitled to be paid, and as such would be hours of service for determining full-time employee status. I don't think you have to count the 30 unpaid minutes, because the employer is not required under FLSA to pay for lunch breaks that last at least 30 minutes. I think the better approach would be to bump the hourly pay for non-lunch hours worked to offset this and not pay for any part of the 60 minute lunch break.

Since it is a school, however, the reason I suspect that the assistants are paid any part of the lunch break (30 of 60 minutes) is because those assistants are in the school cafeteria and expected during the entire 60 minutes to control and discipline the students there as the need might arise. If that's the case, then I think you might have an FLSA duty to pay for all 60 minutes of the lunch break, and if so, then you'd have to count all 60 minutes in the ACA determination of hours/week worked, and thus affecting the classification of full-time employee or not.

[Peter Gulia]

Is it feasible for the employer to reorganize the work so it is apportioned among a greater number of workers?

For example, if the employer's need is to get 300 hours of the described work in a standard school week, instead of using 10 employees at 30 hours a week, may the employer use 12 employees at 25 hours a week, or 20 employees at 15 hours a week. or some other configuration that accomplishes the desired work?

(I do not recommend this; I'm curious about whether it would be feasible.)