Free Meals But Breaks Cost Money

Questions often come up from employees and human resources professionals regarding rest and meal periods under the Fair Labor Standards Act. Most of these questions are the result of confusion by the employee regarding when rest and/or meal periods are required. Under the FLSA, an employer is not required to provide rest or meal periods to an employee during his or her shift. These requirements are often the result of state laws, employer policies or collective bargaining agreements that mandate breaks and meal periods. It is important to determine whether a state law, employer policy or collective bargaining agreement applies, as these may be the source for a required rest and/or meal period while working.

Under the FLSA, rest periods are considered compensable time. Employers should not require employees to “clock out” for rest periods. Rest periods usually run from approximately 5 minutes to about 20 minutes in duration. Employees are usually permitted to have a snack, a cup of coffee or soda, smoke (unfortunately) or use their cell phones during the break. If an employer provides breaks, the employer should not offset the break time against other working time or other on-call time. The key here though is that breaks are provided for relief to the employees and to promote efficiency in the workplace and should be treated as compensable time.

Meal periods, on the other hand, are treated differently. A meal period that is at least 30 minutes in duration does not need to be compensable time. An employee can be required to “clock out” and eat his or her meal unpaid provided that the employee is not required to perform work during the meal period. For example, if a receptionist is required to eat lunch at the reception desk, even though technically she is off the clock, she would still be working as she would be responsible for greeting visitors and accepting the mail or deliveries during her lunch break. Under certain circumstances, a meal period may be shorter than 30 minutes and still be considered non-compensable work time. These situations are very unusual and generally do not apply in the modern workplace. Meal periods should be at least 30 minutes long and employee should be relieved of all duties during this time.

Some employers, in my experience, have required employees to take their meal breaks in the designated employer cafeteria, or if none is provided, in the employer provided break or lunch room. This ensures that employees are not hanging around their work stations and working “off the clock” even if they are doing so without the express permission of the employer. Other employers who I worked with actually require employees to leave the office and eat their lunch either in the designated break room or at a local restaurant in order to ensure that the meal period is actually taken and also to ensure that customers do not come in to the establishment and form the impression that the employees are being paid and not working. (Imagine the classic example of the county road worker sleeping in his truck during his lunch break and members of the public thinking he is sleeping on the job!)

We always recommend employers maintain a clear policy regarding break periods and meal periods under the FLSA. If breaks and meal periods are given, ensure that employees are disengaged from work during the meal period if they are required to clock out. Remember also to check your state laws, employer policies and any applicable collective bargaining agreements to determine if any additional requirements apply.

Paul Bittner, Ice Miller LLP

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