May 3

A majority of employers provide employees with breaks, including meal breaks.  A typical break schedule may include two 15 minute breaks: one before lunch and one after lunch and then a 30 minute or more lunch break. Is the employer required to pay the employee for any of these breaks?

Contrary to popular belief, the Fair Labor Standards Act (“FLSA”), a federal law which sets the rules on the payment of wages and overtime, contains no requirements that breaks be given.  However, when an employer does offer breaks, the FLSA’s rules on compensation must be followed; otherwise there can be financial consequences.  Keep in mind, however, that the FLSA applies only to employees working in non-exempt, typically hourly, positions.

The general rules on the compensability of breaks and meal times are as follows:  Employees must be paid for breaks of 20 minutes or less, including smoking or coffee breaks.  “Bona fide meal periods,” which typically last 30 minutes or more, are not considered work time and therefore do not need to be paid.  The FLSA’s regulations define a “bona fide meal period” to be a meal break in which the employee is completely relieved from duty for the purpose of eating a regular meal.  Generally, 30 minutes or longer is sufficient, and there is no requirement that the employee be permitted to leave the premises.

However, a typical mistake made by employers is when the employee is given a 30 minute lunch period, but is required to answer the phones during this time period, or is required to perform other tasks while eating.  In such a scenario, the employee is not truly relieved from duty, which makes the lunch period compensable time.  Because this work time is now compensable, it must be included in the employee’s hours for the work week, which may result in the employee being entitled to overtime pay.  If overtime is not properly paid, the employee would have a claim against the employer for the unpaid overtime, liquidated damages (which is equal to the amount of unpaid overtime), and attorney’s fees and costs.

In sum, having a policy that clearly explains the company’s break and meal time rules is important in order to avoid confusion and ensure compliance with the FLSA.  The policy should clearly the type and length of breaks offered, and the consequences when employees do not follow the policy.

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