by Laura Pokrzywa
With all the laws that regulate what employers must and must not do, you’d think there would be a federal law that requires employers to give certain breaks to their employees. Surprisingly, federal law does not require employers to provide either lunch breaks or rest periods throughout any given work day.
Many states, however, have enacted such statutes. According to the Department of Labor (DOL), at least 20 states currently require some kind of meal break for adult employees in the private sector. Seven states also have rest periods requirements (California, Colorado, Kentucky, Minnesota, Nevada, Oregon, and Washington). For more details on these laws, you can visit the DOL’s Wage and Hour Division website or check with your state’s labor department.
Some of these state laws are fairly simple. Maine, for example, requires that employers with three or more employees on duty at any one time offer a 30-minute break after six consecutive hours 
of work. The only exception would be in cases of emergency, where the nature of the job allows for frequent breaks during the day, or in light of a collective bargaining agreement or other employment agreement. Other state laws are a bit more complicated. New York, for example recognizes three different meal periods, regardless of the employee’s age:
- For employees who work a shift of more than six hours that extends past 2 p.m.: A noonday meal period must be available running from 11 a.m. to 2 p.m. It must be at least 60 minutes for individuals employed by or in connection with a factory and at least 30 minutes for individuals employed by or in connection with a mercantile or other establishment.
- For any employee who works a shift starting before 11 a.m. and continuing until after 7 p.m., an additional meal period must be available that is at least 20 minutes and can be taken between 5 and 7 p.m.
- For any employee who works a shift of more than six hours starting between 1 p.m. and 6 a.m., employers must offer at least 60 minutes for a meal period when employed by or in connection with a factory, and 45 minutes when employed by or in connection with a mercantile or other establishment. That break must be available at a time midway between the beginning and end of their shift.
Companies who employ minors will also need to consider their state’s regulations for providing breaks to employees who are 17 years old or younger. Pennsylvania law, for example, states that minors under 18 years of age cannot work for more than five continuous hours without a 30-minute meal break.
Though federal law does not require employers to provide rest breaks or meal breaks, one federal law does come into play when a break is offered, whether or not that break is required by state law. Consider the Fair Labor Standards Act (FLSA).
According to the FLSA, if an employer does offer rest breaks, a rest break fewer than 20 minutes must be considered work time and must be compensated and included as regular work time when calculating over time. Bonafide meal breaks are different. These are typically 30 minutes or more, but that is at the discretion of the employer. As long as the employee is completely relieved of all work duties (no monitoring phones or equipment, no interruptions for meetings, etc.), and the break is longer than 20 minutes, they may be considered “off the clock” and do not need to be paid. For this reason, it is good to provide a break area for employee meal breaks if possible – something away from their work stations and phones.
Just because you offer breaks doesn’t mean your employees are taking them. Be careful not to make an assumption that could lead to a violation of the FLSA. If a non-exempt employee does not take a meal break of more than 20 minutes, or if they do any work at all in the course of a longer break, you MUST pay them for their time. Taking automatic deductions from pay for assumed breaks is a risky practice.
You can, however, make it your policy that all employees must take a meal break at a particular time. You would also want to require them to clock in and clock out accordingly. If a non-exempt employee refused to take that break for reasons other than work requirements or supervisor directive, you should discipline the employee accordingly, but could not deduct from their pay if they did any work during that time.
On the flip side of that issue, the Department of Labor offers this guidance regarding paid rest breaks (less than 20 minutes): “Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.”
If you have questions about break times or any HR issues, please send us an email at hrhelpline@eastcoastrm.com and we will be happy to help.
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