Emloyee Rights: Work Breaks

Many employers in the United States provide their employees with lunch breaks and two 15-minute breaks during the course of an eight-hour shift. These times off work do not have to be paid, and you could be required to clock out for any break period you take. However, the widespread practice of giving employees work breaks is not actually required by law. The federal Fair Labor Standards Act (FLSA) does not require employers to provide their employees with meal or rest breaks.

What does this mean for you as an employee? Simply put, the FLSA does not require anyone to be afforded breaks at all during the workday. If nothing but the letter of federal law were followed in your workplace, taking a break during your shift could result in disciplinary action up to and including being reprimanded or even fired.

To cover this gap in the federal law, some states have rules that go beyond the FLSA requirements. Other states, however, have not come up with regulations that go beyond the federal law. As an employee, this means that you need to know what your state laws are regarding employment, since what you consider unfair practices may be perfectly legal where you work.

If you are an employee that receives meal breaks and/or rest breaks, your employer does not have to pay you for them, according to federal law. For example, someone working in a boiler room arrives for their eight-hour shift at 7:30 a.m. They do not have to clock out for their morning break, but they do have to clock out for their lunch break. This employee gets off work at 4 p.m., rather than at 3:30 p.m., effectively making up the work time they missed at lunch.

Individual employers can go above and beyond federal laws when it comes to breaks and meal times for employees. When a company does choose to provide break times for staff, it creates restrictions in the form of regulating those breaks once the employer grants them.

For example, Ronald runs a factory that makes pizza stones. His state does not require him to provide his employees with breaks during the workday. However, because Ronald knows that his product quality could go down if he didn’t offer rest and meal breaks, he chooses to do so.

This means that under the federal law, any rest breaks offered that are 20 minutes or less must be paid for. All of those breaks are required by federal law to be calculated into the employee’s hourly rate. As such, during Ronald’s busy season, he runs more of a risk of paying his employees overtime as a result of offering rest breaks, since it will take them longer to finish their work.

When it comes to meal breaks, any that are provided for 30 minutes or more do not need to be paid. Ronald might choose, then, to give his staff two 15-minute rest breaks and one 30-minute meal break to keep productivity high.

Read More: OSHA Break Requirements

A study by Right Management stated that almost 40 percent of employees admit to eating lunch at their desks often than not. On top of that, 28 percent rarely take breaks at all. This happens nationwide, even in states that have mandatory break laws. This sort of behavior is tied to office culture and goes deeper than existing laws.

As an employee, if you notice that your coworkers are not taking breaks that are offered to them, you could try to discuss it with them. Many people feel pressured to remain at their desk working for a full shift and beyond, often due to workplace culture and unspoken pressure toward diligence. Changing the culture in your office could begin from the ground up, or you could take it up with your company’s upper-level management.

Why would they care, you might wonder? Because if your time card system automatically clocks you out for lunch even though nearly half of the staff works through it, it sets employers up for FLSA violations. Typically these violations involve fines, but the more severe the offense, the more steps could be taken by the FLSA to ensure a fair working environment.

Having a system where employees clock themselves out isn’t the answer, either. If you have staff that clock out and then eat at their desk while working off the clock, that, too, is a violation of FLSA rules. This seemingly minor level of violation can become extremely costly for an employer. Not only does the employer risk a wage and hour lawsuit, they likely will have to pay penalties to the Department of Labor.

Individual states have laws on the books to punish employers with costly fines for not following break laws. If your office has this problem, it is fixable, but it will require work from not only the higher-ups, but from the working staff, as well. Everyone must understand the reasons for breaks and rest time.

Most employees clock out and still work if they feel pressured to do so by upper management. Having upper management take a firm stance requiring employees to adhere to break regulations is a powerful way to start mitigating the problem.

Because the federal laws are so lax, every state has a different set of requirements for employers. Some have generous break policies while others offer barely more than what the federal government regulates. It’s essential that you understand the laws in your state and adhere to them.

Arizona is a state that does not require employers to provide breaks for rest or meals. The only time an employee has the legal right to take time off during the workday is if she is lactating and needs a break to express milk. This is not Arizona law, but an exception under Section 7 of the FLSA. This section requires employers to provide reasonable accommodations and break times for employees to express breast milk. This allowance extends for up to one year after a child’s birth.

In addition to being required to give nursing mothers time to express milk, an employer is required by federal law to provide a private place to the nursing mother that is shielded from view and not in the bathroom. Any break under 20 minutes for lactation must be paid in full by the employer.

In sharp contrast to Arizona, California has extensive break laws to protect employees from unfair practices. State laws require that employees receive multiple breaks during the workday. Breaks include meals and rest or recovery time.

In addition, California requires:

• One day of rest per workweek.
• Five-hour increments for meal offerings.
• Cities can enforce additional labor laws that go beyond state regulations.

California law divides an employee’s day into five-hour segments. If an employee works for five hours, state law requires them to take a half-hour lunch break. This break does not have to be paid for by the employer.

If the employee works at least 10 hours in a day, California law requires them to be offered a second meal break. As is true with the first break, the employer is not required to pay for this break period. The only way to avoid taking one of these 30-minute breaks is for the employee to request in writing that they be permitted to work through it. Employees that work 12 or fewer hours cannot waive both of their 30-minute breaks, only the one nearest the end of their workday.

All nonexempt employees in the state of California must be granted a rest period. A nonexempt employee must be paid overtime and is protected by the FLSA regulations. In contrast, an exempt employee is not warranted the right to overtime pay under the FLSA standards. Employers must pay a salary, rather than an hourly wage, to an exempt employee.

If possible, this break period for nonexempt employees should be positioned in the middle of the work shift. If the employee cannot take a break in the middle of their shift – a common problem for healthcare employees – they must be provided the break whenever the employee is available to take it.

As is true with meal breaks, rest breaks in California depend on the length of the employee's shift. Unlike the meal period, there is no option for an employee to waive their break time. Employees are offered a 10-minute break for every four hours worked. If an employee works for eight hours, they get a paid 20-minute break.

These break laws also dictate that even if an employee works a fraction of their scheduled time, once they hit 3.5 hours, they must receive a break. These breaks are always to be paid at the employee’s hourly rate. If an employer is caught changing the hourly rate for break periods, they can be subject to lawsuits from the employee for lost wages, and they will face fines by the state's Department of Labor.

Rest breaks are counted as work time, but the employee is forbidden to work during this period. However, on-call rest periods are generally OK. This means that if you are taking a break, but a coworker needs your help, you are allowed to go back to work to help. You are also allowed to return to your break to make up that lost time. Employers are required to offer a separate break area that isn’t part of a restroom.

Employees in California are entitled to one day off for every seven working days. This is defined as one day off every workweek. If an employee works for less than 30 hours a week and no more than six hours in a day, they can work seven days.

This day-of-rest requirement works differently than other rest requirements in that an employee can choose not to take it and he does not have to waive the right in writing. However, state law requires the employer to ensure that employees are made aware of the availability of the day of rest.

In the state of Texas, employers are not required to provide any meal or rest breaks whatsoever. Many employers may choose to do so, however. That said, the state does require at least one 24-rest period every seven days. This 24-hour rest period may fall under the category of a day of worship.