Meal Breaks and Rest Periods
Whether meals breaks and rest periods count towards hours worked and must be paid under the FLSA or state law can be a complicated question. The FLSA does not require an employer to provide meal breaks or rest breaks for their employees. Many employers, however, do provide breaks and/or meal periods. Breaks of short duration, from 5 to 20 minutes, are common. As a general rule, bona fide meal breaks and rest periods or rest breaks are not considered hours worked and do not have to be paid.
Some states, such as Illinois and California, do have laws requiring meal breaks and rest periods. Such state requirements will prevail over the silence of the FLSA on this subject. In those situations where an employee is subject to both the FLSA and state labor laws, the employee is entitled to the most beneficial provisions of each law.
For example, a private sector employee employed in a particular state is entitled, by state law, to a paid 10 minute rest break for each 4 hour work period. The employee working in that state is entitled to the rest break, even though the FLSA does not require rest breaks.
Pay for Breaks
Breaks from 5 to 20 minutes must be counted as hours worked. Even though they are not required by the FLSA, if an employer permits employees to take breaks, they must be counted as hours worked. This includes short periods the employee is allowed to spend away from the work site for any reason. This includes, smoke breaks, restroom breaks, personal telephone calls or visits, or to get coffee or soft drinks.
Bona fide meal periods of thirty (30) minutes or more are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. The employee is not relieved of work if he is required to perform any duties, whether active or inactive, while eating. For example, a nurse who eats at the nurse’s station and watches monitors, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
Questions? Contact an overtime pay lawyer at Werman Salas P.C.