Tennessee Tipped Employees Can Now Waive Meal Breaks
Tennessee’s wage and hour statute requires that any employee scheduled to work six consecutive hours must be provided with a thirty (30) minute unpaid meal break (unless the nature of the business provides “ample opportunity [for employees] to take an appropriate meal break.”). The break cannot be scheduled during or before the first hour of the scheduled work shift of each employee. Tenn. Code Ann. §50-2-103(h).
This provision has now been amended to allow a waiver of the meal or rest break requirement by tipped employees. The amendment became effective on May 13, 2012.
First, the employer has the discretion to offer such a waiver by the employee.
Second, the employee must be “principally employed in the service of food or beverages to customers.”
Third, the employee must receive tips and report the tips to the employer.
For example this would not extend the opportunity for waiver to staff who do not participate in the “tip pool.”
Obviously, a waiver would simply the employer’s effort to adequately staff a shift in many food and beverage situations. Further, many wait staff working only six hours would rather maximize their opportunity for tips rather than take an unpaid meal break.
In order to have a valid waiver program, the employer must provide a written waiver request form and must post in at least one conspicuous place in the workplace a reasonable policy that permits employees to waive their meal breaks subject to the demands of the work environment.
The Posted Policy: The employer’s meal break waiver policy must contain the employer’s waiver form, must identify the length of time the waiver will be effective, and outline the procedure for rescinding the waiver agreement.
The Waiver Form: For a waiver to be valid, the employee must submit the waiver request knowingly and voluntarily and both the employer and employee must consent to the waiver. In other words, the employer cannot coerce the employee into waiving a meal break. The waiver must also expressly state that-
· the employee acknowledges the right under state law to receive the unpaid meal break of not less than thirty minutes during a six-hour work period;
· the length of time the waiver will be effective;
· procedures for rescinding the waiver by the employee or employer.
This new revision to the Tennessee wage and hour statute provides employers an important opportunity to take advantage of the waiver option. Employers should use the opportunity to streamline staffing options and re-examine which employees are participating in the “tip pool” of their locations with their employment law counsel in order to ensure compliance.
By Don Benson
Leave a comment
You must be logged in to post a comment.