Request By:
Col. Russell E. Lane
Chief, Richmond Police Department
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the working hours of police officers in a city of the third class. Presently city police officers work eight hours a day which includes their forty-five minute lunch break. Officers are paid time and one-half for hours worked in excess of forty hours per week.
Your specific question asks whether police officers can be given a one-hour lunch break and still be required to work eight hours a day. During the lunch hour police officers would be subject to call for emergency situations only and, if called, would be paid at the overtime rate. Each day would be divided into three work shifts, each of which would provide for eight hours of work plus one hour for a lunch break. The primary purpose of the proposed change is to provide for in-service training during the work shift and still have officers on duty performing police work as the work shifts would overlap under the proposed plan.
KRS 95.497 provides in part that in cities of the third class the members of the police department shall not be required to work more than eight hours per day for five days each week, except in the event of an emergency.
KRS 337.355, dealing with lunch period requirements, states as follows:
"Employers, except those subject to the Federal Railway Labor Act, shall grant their employes a reasonable period for lunch, and such time shall be as close to the middle of the employ's scheduled work shift as possible. In no case shall an employe be required to take a lunch period sooner than three (3) hours after his work shift commences, nor more than five (5) hours from the time his work shift commences. This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employe and employer."
A regulation enacted by the State Department of Labor [803 KAR 1:065, Section 4(2)] provides in part as follows:
"Meals. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employe must be completely relieved from duty for the purpose of eating regular meals. Ordinarily, thirty (30) minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. . . ."
In
National League of Cities v. Usery, Secretary of Labor, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), the United States Supreme Court held that it was beyond the power of Congress under the Commerce Clause of the Constitution, via the Fair Labor Standards Act, to prescribe minimum wages and maximum hours to be paid by the states to their employes in the states' sovereign capacities. See OAG 79-151, copy enclosed. However, by way of example, the Federal Act has been interpreted to exclude lunch periods from working time.
An annotation in 89 L. Ed. 130, 138, states in part that "Lunch periods have been uniformly held not to constitute working time within the contemplation of the Federal Fair Labor Standards Act. . . ." In addition, the following appears in 48A Am.Jur.2d, Labor and Labor Relations, § 2262:
"Although an employment agreement may specifically make meal periods compensable working time, absent such an agreement, 'bona fide' meal periods are not usually considered hours worked within the contemplation of the overtime provisions of the Fair Labor Standards Act, at least insofar as the employees are not required to stay on the premises during the meal period, or are free to do what they will during such period, although they may occasionally perform some emergency service. . . ."
In OAG 77-68, copy enclosed, at page two, we dealt with meal periods and rest periods under the Kentucky statutes. We said that KRS 337.365 does not apply to meal periods except to state that the rest period is in addition to a regularly scheduled lunch period. Kentucky has never interpreted KRS 337.365 to require a paid meal period, only paid rest periods of ten minutes. KRS 337.355 authorizes meal periods but not paid meal periods.
Thus, in conclusion, it is our opinion that a city may give its police officers a one-hour lunch period and still require that those police officers work an eight-hour shift. Although police officers cannot be required to work more than eight hours per day, except in an emergency, the lunch break is not usually considered worktime.