Everyone has to eat. We all need a break. Such concepts are simple, but laws governing meal and rest breaks in the workplace are not simple. Federal law sets standards for rest and meal breaks, including whether those breaks should be paid. States add additional requirements.
Under the federal wage and hour law the Fair Labor Standards Act, non-exempt employees can receive short paid rest periods—usually five to 20 minutes. These rest breaks are designed to promote efficiency on the job, and are counted as hours worked.
Bathroom breaks are not considered rest breaks, since the Occupational Safety and Health Administration requires employers to provide toilet facilities and allow employees to use them when necessary.
Meals breaks typically last at least 30 minutes and may be unpaid. However, if the employee performs any duties during the break – i.e., checking e-mail or answering the phone – you must pay for the break.
Working through meals may affect overtime pay for non-exempt employees under the FLSA. For example, if an employee is required to be at work from 8:30 a.m. to 5 p.m. Monday through Friday, the employer must pay overtime if the employee works through lunch.
Some states impose mandatory breaks for employees in particular industries after he or she works a defined period. Many states require meal breaks. These state laws are more detailed than the rest break laws, but generally demand a half hour for employees working a proscribed number of hours. The laws do provide exceptions, so employers should review their state’s laws.
California in particular has strict rules about breaks, and the California Supreme Court recently issued a decision in Brinker v. Superior Court that provides employers guidance on California’s mandatory meal and rest break rules. The NFIB Small Business Legal Center has additional information on the Brinker decision here.
The NFIB Small Business Legal Center has released a Model Employee Handbook for Small Business that is available free to active NFIB members and can provide additional help in drafting a written policy on meal and rest breaks. Members who are registered on NFIB.com can download a copy.
May 17, 2012