Breaks, Meal Times and the FLSA

by Michael Haberman on February 23, 2011 · 1 comment


One area of confusion, and thus an area of the FLSA often violated deals with breaks and meal periods. Many employees think that they are entitled to a break or a lunch period. In fact, under the Fair Labor Standards Act, they ARE NOT entitled to any such thing. The DOL website specifically says “The Fair Labor Standards Act (FLSA) does not require employees be given meal or rest breaks.” So great news for employers you don’t have to give breaks or lunch! Of course your productivity will suck, your employees will be unhappy and you will have alot of turnover.

So to avoid that big employee relations problem you probably need to give them breaks and a lunch. But that is where you get into trouble. You figure you can save yourself some money by making your employees clock out for their break and lunch period. If you make your employees clock out for a break you have just committed a Wage & Hour violation. The DOL website specifically says“… if employers do offer short breaks (lasting about five to 20 minutes), federal law considers these short breaks time for which employees must be compensated.” Now you may question how do you actually control the period of time the employee has taken. That is under supervisory control. And the FLSA does allow you some recourse in dealing with people who violate the stated break period. Fact sheet #22 says that:

 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.

However, before you get the whipping stick out make sure you take note of the phrase “expressly and unambiguously communicated to the employee”.

Meal breaks are also an area that employers frequently screw up. Fact Sheet #22 also says that “Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time.” I am sure  you are thinking “Of course it shouldn’t be compensated time, they are not working.” But here is the rub. Fact Sheet #22 also points out “The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.” Notice that emphasis! That means no answering the phone, no answering email, no running errands. It means FULLY RELIEVED OF ANY DUTY. If you don’t do that you are building in compensable time, which could build in 2.5 to 5 hours per week of overtime.

Speaking of overtime reminds me to tell you this only applies to NON-EXEMPT employees. With exempt employees you are allowed to work their fingers to the bone. Meal time and break time don’t exist in their world, at least not on the Federal level.  State levels may be a different story. Some states do require break times and meal times. And of course many union contracts will as well. If you want to check out what states require take a look at Minimum Length of Meal Period Required Under State Law For Adult Employees in Private Sector.

If you want to read Fact Sheet #22 think click on this title Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA).

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{ 1 comment… read it below or add one }

Dave Ryan February 25, 2011 at 8:09 am

More good stuff Mike. I wonder how these rules compare to labor law in China or Viet Nam?

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