Request By:
Kenneth J. Costelle
Assistant Counsel
Labor Cabinet
U.S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion concerning an interpretation of KRS 337.365 which, since 1980, reads as follows:
No employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked, except those employees who are under the Federal Railway Labor Act. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourlyor salaried employes.
Prior to 1980, that statute read:
No employer shall require any employee to work for more than four (4) hours without rest periods of at least ten (10) minutes. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourly or salaried employees.
We previously wrote on this subject in OAG 70-611, stating that a second break is not required where the employee works only 7 1/2 hours:
The question is whether or not a second break is required under the amended statute for any portion of time by which a working day exceeds four (4), but is less than eight (8) hours, i.e., anywhere from four (4) hours and fifteen (15) minutes to seven (7) hours and fifty-nine (59) minutes.
You advise that the Kentucky Department of Labor has interpreted this statute to mean that the rest period must be given during the four hours worked and, since a ten-minute rest period is considered work time (and must be compensated therefor), an employer could not work an employee more than three hours and fifty minutes, the total hours worked would be four hours.
Otherwise, you argue, an employer could work an employee three hours and fifty-nine minutes and thus avoid the rest period.
As we view the 1980 statutory change, the law is now more explicit as to when the rest period must occur, i.e., during each four hours worked, rather than one or more when the employee works "for more than four hours." (Emphasis added.)
Perhaps several illustrations will best explain our interpretation of the present language in, KRS 337.365.
1. Employee works 7:00 a.m. to 10:49 a.m. and then goes home for the day. In such an example, he has not worked four hours. No rest period is required.
2. Employee works 7:00 a.m. to 11:00 a.m. A paid rest period of ten minutes must be given between 7:00 a.m. and 11:00 a.m.
3. Employee works 7:00 a.m. to 11:00 a.m., has a lunch break from 11:00 a.m. to 11:30 a.m., works from 11:30 a.m. to 3:30 p.m. He is entitled to two paid rest periods of at least ten minutes each, one between 7:00 a.m. and 11:00 a.m. and one between 11:30 a.m. and 3:30 p.m.
Employee works 7:00 a.m. to 11:00 a.m., has a lunch break from 11:00 a.m. to 11:30 a.m., works from 11:30 a.m. to 3:29 p.m. He is entitled to a paid ten-minute rest period between 7:00 a.m. and 11:00 a.m. and a paid rest period between 11:30 a.m. and 3:29 p.m., because there can be "no reduction in compensation" for the rest period.
Since there can be no reduction in pay for the rest period and it must occur within the four hours worked, the employer could not work the employee, in this example, past 3:20 p.m. The rest period would need to come within the four hours and the last paid ten minutes must be counted as the rest period. In that regard, we believe your interpretation is correct. Where a statute may be ambiguous and not previously interpreted by a court, an administrator's prior and consistent interpretation shall be given great weight. J.B. Blanton Company v. Lowe, Ky., 415 S.W.2d 376 (1967).
In other words, the obligatory ten-minute rest period must be considered as working time. Where an employee actually works a minimum of three hours and fifty minutes, a ten-minute rest period must be added to the hours worked, to determine the number of rest periods and wherein each one occurs.