“I’m beat, time for my break!” Rest and Meal Periods under the FLSA.

“Hey, I’ve been at this for a while, it’s time for my break.  You have to give me two 10 minute breaks and a 30 minute lunch period!”  Heard that one before?  Let’s get one thing out of the way right now.  Nothing, let me say that again, NOTHING in the FLSA requires you to give an employee who is 18 years of age or over any break ever.  That’s right, you can work your 18 year old employees for 24 hours straight if that is what you want to do.  Go ahead and try it and see how long you have any employees, but the FLSA does not require breaks.

Now before you run off and try that, you better check your state law.  Some states do have requirements for breaks.  States like California have very specific and employee friendly laws that require breaks at specific intervals, and some states like Michigan have no such laws for employees 18 and over.  And there are different rules for minors.  And since we are talking about the FLSA and not state law, we are not going to get into those specifics.

The FLSA Handy Reference Guide says,  And by the way, I am not making up that title, don’t believe me, you can find the Handy Reference Guide to the Fair Labor Standards Act at http://www.dol.gov/whd/regs/compliance/wh1282.pdf.  anyway, the Handy Reference Guide says:

While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which the FLSA does not regulate. For example, the FLSA does not require:

(1) vacation, holiday, severance, or sick pay;

(2) meal or rest periods, holidays off, or vacations;

(3) premium pay for weekend or holiday work;

(4) pay raises or fringe benefits; or

(5) a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees

So why are we talking about rest and meal periods?  Because the FLSA does define when rest and meal periods must be considered hours worked and must be paid.  Let’s start with “rest periods.”

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945).)

29 CFR § 785.18.

So that 10 minute break you give to your employees in the first half of their shift and the other one you give to them in the second half of their shift are not required by law, but if you do give those breaks you have to pay the employees for the time spent on break.  You knew that, didn’t you, but now you know why.

What about meal periods, you know, lunch breaks?  Well, they are different.  First, they are not coffee breaks or times for snacks.  The employee must be free to do their own thing.

(a) Bona fide meal periods. Bona fide meal periods 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. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, 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.

29 CFR § 19(a).

The employee does not have to be free to leave the employer’s premises for a meal time to be excluded from working time, but as you can see in the regulation above, you can’t make the employee eat at his or her desk or his or her machine.

And with that, it is time for me to take a break.  Talk to you next week.