Meal and rest break laws vary from state to state; some have stringent regulations mandating break times while others don’t have any requirements for employers. However, even where break times are not mandated by state law, employers might decide to offer breaks to their employees to improve morale and productivity. Here’s what you need to know about crafting a meal and rest break time policy for your small business.
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Under the federal Fair Labor Standards Act (FLSA), employers are not required to permit employees to take breaks throughout the work day. The only federal standard that exists requires employers who choose to offer breaks to compensate employees accordingly during those break times.
“When employers do offer breaks lasting from 5 to 20 minutes, federal law considers breaks of that length as compensable,” said Moses Balian, HR expert at JustWorks. “And they should be included in the total of hours worked and when determining overtime.”
Additionally, meal breaks of 30 minutes or more do not need to be paid as long as an employee is relieved of all work-related responsibilities during that time.
Beyond this consideration, federal law is quiet on the matter of meal and rest breaks. State law varies considerably — some have stringent rules like in California, while 30 states have no requirements whatsoever. If you operate your business in one of the 20 states that do have meal and rest break laws, however, it is important to ensure you remain in compliance with those rules.
“While the federal level does not have those specific mandates, there are states with specific rules,” said Brianna Brockway, HR coach at Paychex. [Check out our full review on Paychex payroll software.]
According to Brockway, the following examples demonstrate just how much state laws on meal and rest breaks can vary:
Employers must understand the law in every state in which they operate. Consult with legal counsel to determine your obligations and develop a comprehensive policy that ensures compliance. If you are a multistate operator, you will need to examine every applicable state law for the states you are operating within.
Meal and rest break laws typically only apply to non-exempt employees under the federal FLSA. Non-exempt employees are those that are eligible for overtime. They are typically wage workers rather than salaried employees. Additionally, non-exempt employees must not fall into any exempt categories based on their job duties and role within the company.
Remote employees who are considered non-exempt are entitled to meal breaks under federal law. If you operate in a state where employees are entitled to additional breaks, your remote workers may be entitled to those breaks as well. If you want to play it safe, extend the same policy to your remote workers as you do onsite staff. If you’re considering an alternative policy, consult with legal counsel about the best way to proceed to ensure you’re not unintentionally violating any regulatory requirements.
The number of breaks an employee must receive under state law varies. It can depend on a number of factors, including total time worked per day, total time worked per week, industry and job role.
However, some employers might choose to offer more breaks than required by law, especially if their state doesn’t require any meal or rest breaks, said Melissa Costello, a labor and employment attorney at Ballard Spahr.
“There are a lot of good reasons for employers to choose to offer breaks,” Costello said. “You want employees to get some rest, clear their heads, and have some time away from work.”
Research has demonstrated that taking breaks not only benefits employees’ mental and emotional well-being, but also to restore motivation, improve decision-making, boost productivity, encourage creativity, and improve memory consolidation and learning. A rested employee is an effective employee.
Due to the federal distinction between compensable five- to 20-minute breaks and non-compensable 21+ minute breaks, it is important to distinguish between on-duty and off-duty breaks, Costello said.
“If an employer is providing unpaid breaks, it is really important that the employer prevent employees from working during that unpaid break,” she said. “I recommend employers require employees to eat away from their workspace or provide a break room.
“If an employee is sitting at their desk eating lunch and the phone rings and they answer it, they’re not relieved of their duties and the employer should be paying them,” she added.
Even if that example sounds innocent, an employee could technically complain that they were not relieved of their responsibilities and the employer could be on the hook for back pay and other financial penalties.
For an employee to take an “off-duty break,” they must be able to fully step away from any work-related tasks. Allowing employees to even perform simple work-related tasks during their breaks would constitute an on-duty break and may violate regulatory requirements.
If an employee works through what should be an unpaid break, employers must pay them for that time. However, employers could consider failure to abide by company break time policy a performance issue subject to discipline.
“If employees are working through breaks, even though they’re supposed to be unpaid, you have to compensate them for that time,” said Paul Starkman, employment attorney at Clark Hill. “You can provide warnings and discipline if they don’t follow policies on taking breaks when required to do so. But if they do work, you’re required to pay them.”
Ultimately, if an employee repeatedly works through breaks after attempts to correct the behavior, an employer could terminate that employee. However, the employer must document all disciplinary action taken prior to termination and consult with an employment attorney regarding the decision to terminate an employee before doing so.
“Fundamentally it’s a performance issue,” Balian said. “Attendance is one of many facets of performance … and attendance encapsulates many things. The most common one we talk about is late arrival to work, but it’s also failure to follow employers’ prescribed working schedule in any manner. So, an insistence to work through lunch against advisement is a performance issue. They still need to be paid for that time, but they can be written up and disciplined.”
To make matters more complicated, if an employee can reasonably claim that although company policy requires them to take a 30-minute unpaid break while their workload was too immense to reasonably do so, the liability could be back on the employer.
“Even if an employer is explicit about employee entitlement to meal and rest breaks, if the workload is just too high employees might not feel like they reasonably can take their legally mandated meal or rest break and still complete work assigned to them,” Balian said. “In that case, should an employee make a complaint to the state DOL, there might be credence to claim that despite explicit encouragement to take breaks, the fact that they were unable to complete minimum productivity standards and take their break [made it impossible to do so.]”
The best way to ensure off-duty meal breaks are truly off-duty is to establish a clear policy that includes mandatory meal breaks away from the workspace, including clear and transparent expectations around workload and when to perform work-related tasks.
Additionally, Balian said, employers should work with employees to help them prioritize their work and streamline the manner in which they move from task to task. If that coaching doesn’t produce results, consider whether the employee’s workload is truly too much or if they are simply not performing their job efficiently.
Many tools available to help employers automate tracking employee time and attendance. These tools can take care of many tasks, like allowing employees to clock in and out through a smartphone application. Many tools also include geofencing so employers can monitor the locations from which remote employees are clocking in. Additionally, these tools compile reports on employee time and attendance, establishing a record for employers to reference in the event of an audit or simply to ensure compliance with company policy.
“With wage and hour laws, [reporting] is really important if you’re ever audited,” Brockway said. “If an employer moves forward with automating systems, they can usually track and report that data. It can also minimize operational costs, free up personnel for higher level tasks and add value to the organization.”
Check out our picks for the best time and attendance software to help you choose the best platform for your team. For example, our Time Doctor review offers a closer look at the platform’s productivity-boosting tools, while our review of When I Work breaks down a solution for brick-and-mortar businesses like retail stores and restaurants.
Understanding the meal and rest break laws and regulations that apply to your business, both federally and in the states in which you operate, is critically important. Work with your legal counsel to devise a company policy that adheres to all current regulations, and revisit it regularly to make sure you’re in compliance with the latest guidelines from state and federal agencies. Ensuring your employees have adequate meal and rest break times can also reduce turnover and boost morale and productivity, so build time to recharge into your employees’ schedules.