Under Maryland’s Healthy Retail Employee Act, Maryland employers who operate “retail establishments” must provide non-exempt retail employees with break periods based on the length of the shifts the employees work. Employers in violation of the Act will face a fine.
Effective March 1, 2011, the Act defines a retail establishment as “a place of business with the primary purpose of selling goods to a consumer who is present at the place of business at the time of sale.” A “retail establishment” does not include a restaurant or wholesaler.
Breaks According to Length of Working Shift
The Act provides that:
- a shift of 4 to 6 consecutive hours requires a nonworking shift break of at least 15 minutes;
- a shift of 6 or more consecutive hour requires a nonworking shift break of at least 30 minutes; and
- a single shift of 8 or more consecutive hours requires a second nonworking shift break of at least 15 minutes for every 4 consecutive hours. For example, if an employee works 16 hours, the employee would get one 30-minute break plus two 15-minute breaks.
However, if an employee works fewer than 6 consecutive hours, the nonworking shift break requirement may be waived by a written agreement between the employer and the employee.
The Act also allows for a “working shift break” in lieu of a nonworking break so long as the employer and employee agree to that arrangement in writing and (1) the type of work prevents employees from being relieved of their duties, or (2) employees are allowed to consume a meal while working and the working shift break is counted towards the employee’s work hours.
Paid or Unpaid?
The Act does not address whether an employee is paid during the break time. However, under the federal Fair Labor Standards Act and Maryland law, short breaks of less than 20 minutes are considered work time that must be included in the sum of all hours worked in a week and are compensable.
Retail Establishments Affected
According to the Maryland Department of Labor, Licensing and Regulation (“DLLR”), the Act only applies to an employer who has at least 50 retail employees in Maryland.
DLLR guidance defines “retail employees” as those who are “engaged in actual sales, in a store.” Employees who are not working in a “retail establishment,” such as those at a corporate or other office, are not covered by the Act and do not count towards the 50 employees required to trigger the protections under the Act.
In applying the 50-retail-employee rule to a company that owns several franchises, the Act requires that the company include the total number of retail employees it has throughout the state.
The Act does not apply employees who are covered by collective bargaining agreements or employer policies that already provide shift breaks that meet or are more generous than the Act’s requirements. The Act also provides an exception where there are fewer than 5 employees at a particular retail location.
Complaints
If an employee believes that the Act has been violated, he or she may file a complaint with the Maryland Department of Labor. If the DLLR determines that the Act has been violated, it may fine the retailer up to $300 for each employee for whom the employer is not in compliance. Continued non-compliance by an employer may result in higher fines.
An employer that does not comply with the DLLR decision risk a suit by either the Commissioner or the employee in Maryland Circuit Court seeking to enforce the finding.
What Employers Should Do
Maryland retail employers should analyze their policies immediately, whether written and unwritten, to determine whether they comply with the new break requirements of the Act. Noncompliant written policies should be amended, and unwritten practices should be reduced to writing so that compliance can be demonstrated if necessary.
Jackson Lewis attorneys are available to review policies and discuss how to best comply with new requirements of the Act.
