State and federal wage and hour law is difficult for even the best HR people to correctly administer.  All of us are faced with ensuring that rest and meal break rules are understood and adhered to.  While the rules aren’t terribly complex they can be tricky.  They certainly can be sensitive as they involve two things highly valued by employees-   breaks and pay.  Therefore they deserve periodic attention. Serious and costly consequences can result if something as seemingly simple as the law surrounding rest breaks isn’t followed.

Take the Rest and Meal Break True-False Quiz

•1. ______ Federal law, (the Fair Labor Standards Act), requires meal and rest breaks.

•2. ______ If breaks are provided, federal law requires that they be paid.

•3. ______ If you interrupt an employee’s lunch break she must be paid.

•4. ______ If I interrupt an employee’s lunch break for 7 minutes he only needs to be paid for those 7 minutes.

•5. ______ An employee who sits at his desk to eat lunch, plays computer games and does personal Internet searches is also asked to answer the phone in case it rings, must be paid.

•6. ______ An employer must allow employees to leave the building for meal periods to not be considered “hours worked” and therefore unpaid.

•7. ______ You don’t have to pay employees who want to sit at their desks, eat, and maybe get some work done, as long as they do so voluntarily.

•8. ______ If we’ve repeatedly told an employee to not work during lunch and our employee handbook clearly states that policy, we don’t need to pay him for that time.

•9. ______ Automatic meal time deductions are ok.  It’s unnecessary for employees to record their  actual start and end times for meals.

•10. ______ An employee can be required to work through meal breaks.

•11. ______ The ADA may impact break policies.

•12. ______ It’s ok for an employee to work through a rest break as those are paid anyway.

•13. ______ Employers must provide breaks for breastfeeding.

•14. ______ Smokers don’t need to be treated any differently than other employees regarding breaks.

•15. ______ I better figure out my state law.

Answers:

•1. False. Federal law does not require meal or rest breaks.  However, most states do so.

•2. Maybe. Under the FLSA, employees do not need to be paid for bona fide meal or lunch breaks. Generally, a meal period is considered bona fide if it is at least 30 minutes long and an employee is completely relieved of her duties. An employee is not relieved from duty if she “is required to perform any duties, whether active or inactive, while eating.”

• a. The FLSA requires that short rest breaks (e.g., of 5-20 minutes) be considered “hours worked,” must be paid, and considered when calculating overtime.
• b. What about breaks from 21-29 minutes? This is a gray area. It’s possible that breaks of this length could be characterized as lunch breaks and be unpaid. However, as a practical matter employers want to avoid litigating break issues as they often turn into class actions. It is probably wise to be safe and pay for breaks that are shorter than 30 minutes.

•3. Maybe. Courts have interpreted the FLSA’s “completely removed from duty” requirements (for a lunch to be unpaid) differently depending upon the circumstances. There is no clear test. However courts have considered the phrase as not requiring that an employee never be interrupted during a lunch period. An occasional 1 or 2 minute interruption would probably not need to be paid. However, if an employee were interrupted for any significant time, or on a regular basis, then that time is more likely considered to be “hours worked” and therefore compensable.  The “minimal” interruptions are cumulative.

•4. False.  Most likely if you significantly interrupt a lunch break you must pay for the entire lunch break.  You can’t pay for just the 7 minutes that the employee worked.  You would need to start the lunch break over for it to be unpaid.

•5. True.  Of course this depends upon the circumstances, but most likely the employee would need to be paid.  This would be especially true if the employee were asked to do this on a daily or regular basis and if the phone rang more than rarely.  Remember, that even “inactive” duties can be compensable.

•6. False. Under federal law a meal break does not have to be paid even if employees aren’t allowed to leave the worksite, as long as they are relieved from their duties. However, state law may impose different rules.

•7. False.  Permitting an employee to work during lunch would constitute “hours worked” and be considered paid time. Not only would you need to pay the employee for the lunch period you may also have an overtime implication if he exceeds 40 hours per week.

There may also be risks in allowing employees to eat at their workstations because it may be unclear whether the lunch is duty free. Supervisors should ensure that their employees take their lunch periods to avoid potential overtime implications

•8. False. You’d need to pay the employee, even if you’ve told him that working through lunch violates company policy. You’d then likely want to consider some form of corrective action.

•9. True (maybe).  Federal law doesn’t prohibit automatic time deductions. However, certain states may.  In any event it’s recommended that employees record their start and end times.  Assuming an employee takes his unpaid lunch is a risk, plus, it’s more difficult to prove that employees are actually taking lunches should the issue arise.

•10. Maybe, Maybe Not.  Federal law doesn’t require meal breaks. However, many states do require them.  If your state law is more beneficial to employees it must be followed.

•11. True. A scheduling change could be considered a reasonable accommodation under the Americans with Disabilities Act (ADA). Therefore a disabled employee may be entitled to a longer, earlier, or otherwise modified meal break.  Additionally, the ADA may require covered employers to alter rest break schedules to reasonably accommodate disabled employees. For example, a diabetic employee may require more frequent breaks to have a snack or administer medication.

12.  Maybe or Not.  Working through a rest break does not have the same implications as working through a meal period. Under federal law, rest breaks must be paid and are considered “hours worked” and therefore used to calculate overtime. However, employers in states with rest break requirements may find themselves violating state law if they fail or neglect to enforce rest periods. Check your state law for the specifics.

13. Maybe, Maybe not. Federal law doesn’t require these breaks.  However, an increasing number of states have passed legislation relating to breastfeeding breaks. Generally, breastfeeding employees in these states must be given unpaid time during the work day to express milk. Typically, the breaks could be required to run concurrently with other breaks during the day. Some states also specify that a certain room (other than the restroom) be set aside for this purpose.

14. True. Smokers should be treated similarly to other employees and should be expected to comply with company break policies. Smokers should not be treated either more liberally or more restrictively than other employees. In fact, some states have enacted laws to protect smokers’ rights. However, many states (and workplaces) impose strict workplace smoking restrictions, which must be enforced. Most problems regarding smoking breaks occur because smokers are often required to smoke outside or some distance from their workstations. This can result in them returning late from breaks, which may aggravate nonsmokers and should be dealt with through corrective action.  Both smokers and nonsmokers who abuse breaks should be treated similarly.

15.  True. (Big Time)  State law differs widely regarding meal and rest breaks. Most states impose considerable rules that go well beyond federal requirements while others address only a few issues, and others say pretty much nothing at all.  Many states impose meal break requirements after an employee works a certain number of hours. Some require two meal periods if enough hours are worked.   A few states impose different requirements for different groups of workers (e.g., factory vs. office employees or adults vs. minors). So be sure to check your state law.

Most states, but not all, impose specific rest break requirements and may specify the duration and number of breaks required.

A few last things to consider:

1. Conduct periodic audits of your break policies, practices, and time records.  Employers need to know what is really happening in their workplaces.  This could be done as a regular self-audit or as part of a larger audit designed by your counsel under attorney-client privilege.
2. Schedule and enforce meal and rest periods properly.  Make sure you schedule breaks as required by state law. Make sure employees receive their “net” lunch or rest period.  Some organizations, although required to provide only 10 minute rest breaks, provide 15 to ensure that the “net” is appropriate.  Late or missed breaks can create a lot of risks for employers and create morale problems for employees.
3. Don’t let employees work through lunch or rest breaks.  Obviously this is the most important if state law requires these breaks.  However, breaks are important to help employees relax and be productive.  Working through lunch may also create unintended overtime consequences.  It may also create a climate where employees may expect to leave early because “they put in their time.”    Allowing employees to combine lunch and rest breaks is generally not a very good idea.
4. Be aware of any pre or post lunch tasks that an employee must complete before they stop for lunch or start again.  This would need to be considered paid time.
5. Make sure you record lunch breaks appropriately and that any time clocks used are very accessible and accurate.  Employees shouldn’t “be allowed” to work off the clock.
6. Make sure meal and rest break rules are thoroughly discussed during employee orientation and that managers fully understand them and the consequences of violations.  Consider posting or redistributing your rules periodically.
7. Act quickly if you discover that certain employees or supervisors are violating the rules.  You may need to take corrective action to ensure the problems are resolved.  If you find that you have widespread problems you may want to contact your attorney for assistance.   Wage and hour cases can easily spin out of control into very, very costly class action suits.