Just in the last month, a Wisconsin hospital will reportedly pay $3.5 million, Sketchers $1.2 million and Kindred Health Care $16.5 million for missed or improperly paid meal and break periods. The 76-year-old law remains a mystery for many employers, leaving a wake of lawsuits.
The rules around breaks and meal periods are relatively simple, but yet many employers don’t know them. Here are the most important things employers need to know about compliance with the FLSA’s regulations around meal and break periods.
Who is Covered?
Employers: The Fair Labor Standards Act governs most employers – so any employer (or manager) reading this should assume the organization is covered by the FLSA.
Employees: The rules discussed here only apply to non-exempt employees. This means that any employee who is not exempt from overtime is entitled to these rights. Note that a significant trap for employers is that many employees you think are exempt are really non-exempt. We will save that discussion for another article.
Do Employers have to provide Meals or Break Periods to Employees?
No – not under the FLSA or Virginia law. Employers could theoretically work a non-exempt employee 24 hours a day, seven days a week with no meals or break periods so long as the employee receives pay for time and a half of the employee’s regular rate of pay for all hours worked over 40 in a workweek. While this might violate OSHA laws, and I certainly don’t recommend this tactic, it would not violate the FLSA or Virginia wage and hour laws. Note that some states, although not Virginia, require meal and break periods.
What if the Employer Provides, or Mandates, Meal or Break Periods?
Most employers provide breaks and meal periods for employees, in which case there are specific rules around payment of wages for meal periods and breaks.
1. Breaks: If employees take breaks of 20 minutes or less, all this time must be paid. Even if you count this time as a quick lunch, smoke break, etc, the employee is entitled to be paid and should not be clocking in and out. I had one client who made employees clock in and out every time they made personal calls of 5 and 6 minutes. This is not legal.
2. Lunch/Meals: You can only deduct pay for meal periods if the employees (1) take 30 minutes or more; and (2) the employee is fully relieved of duty during this time , meaning the employee is not actively, or inactively, working or being interrupted.
I cannot stress how many employers get this wrong. If the employee has a scheduled 30 minute meal period, but is interrupted and only gets 20 minutes, the employee has not taken what the FLSA calls a “bona fide meal period” and the employee must be paid. Meal periods should be uninterrupted time. For the period of 21 to 29 minutes, the Department of Labor states, " Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions, provided that during the short meal period the employee is completely relieved from duty.” Employers take a risk deducting pay for meal periods of between 21 and 29 minutes.
Can the Employer Mandate Lunch Breaks?
Yes. The employer can mandate that employees take 30 minutes or more for lunch.
What if the employee takes several short breaks?
Employers frequently ask about employees who decide, in lieu of a long lunch, take multiple breaks and just eat at their desks. If an employee takes four 15 minutes breaks throughout the day instead of a single hour lunch, the employee must be paid for the entire day, and has no meal period deductions.
How can employers control/pay employees who take multiple unauthorized breaks?
This isn’t a pay issue – it’s a performance one. Employees who take more breaks than offered by the employer can be counseled and disciplined. Employers are never required to give specific “smoke” breaks and smokers have no greater rights to breaks than anyone else.
What if the employee exceeds the break time provided?
The DOL's Fact Sheet provides that, unauthorized extensions of authorized work breaks need not be counted as hours worked (and thus don’t need to be paid to the employee) when:
- the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, and
- that any extension of the break is contrary to the employer's rules, and
- any extension of the break will be punished.
Keep in mind this rule is a narrow exception to the “must pay for breaks” regulation, so employers need to make sure they have 100% compliance with this “and” test.
If you give meal and break periods to employees, follow these rules, period. Employers have virtually no discretion otherwise.