- There is no federal requirement for employers to offer meal or rest breaks, and state law varies considerably.
- Employers who violate meal and rest break laws could incur significant penalties, including premium payments, employee backpay and reputational damage.
- Extending meal and rest breaks beyond the legally required minimum could boost employee morale, retention and overall productivity.
- This article is for small business owners who want to devise a meal and rest break policy that is both compliant with state laws and beneficial for their business.
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 to extend these breaks. However, even where break times are not mandated by state law, employers might decide to offer breaks to their employees in a bid 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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Are employee breaks required by law?
Under the federal Fair Labor Standards Act (FLSA), there are no requirements for employers 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 consulting manager at JustWorks. "And they should be included in total of hours worked and when determining overtime."
Additionally, meal breaks of 30 minutes or more do not need to be paid, so long as an employee is relieved of all work-related responsibilities during that time.
Beyond this consideration, federal law is relatively silent on the matter of meal and rest breaks. State law varies considerably, though, from stringent rules like those in place in California to no requirements whatsoever in 30 states. 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:
- California: In California, employees are entitled to a half hour meal break for every five hours worked, unless the workday ends in six hours or less. An employer must extend a second 30-minute meal break to employees working more than 10 hours per day. In California, employers must also provide a 10-minute paid rest break for every four hours worked. Failure to comply with these rules could result in financial penalties up to two hours premium pay per employee per day the violations occurred. In other words, non-compliance can get expensive quickly.
- New York: New York does not mandate rest breaks but does require employers to provide meal breaks. The specifics of these breaks vary by industry, Brockway said. For example, a factory worker must be permitted to take a 60-minute meal break in the middle of their shift, while an office employee must be permitted to take a 30-minute meal break if they work more than six hours in one day, Brockway said.
- New Jersey: New Jersey is one of 30 states without any meal or rest break requirements. Instead, employers in New Jersey must only follow the federal law set out under the FLSA if they choose to extend breaks to employees.
Naturally, employers should understand the law in every state in which they operate. Consult with legal counsel to determine your obligations and to develop a comprehensive policy that ensures compliance. If you are a multi-state operator, you will need to examine every applicable state law for the states you are operating within.
Exempt vs. non-exempt employees
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. This full list of exempt employees on the U.S. Department of Labor (DoL) website includes more details about what constitutes an exempt employee.
Key takeaway: There is no federal requirement for meal and rest break laws, but some states have strict regulations governing break times for non-exempt employees. 30 states, however, have no meal or rest break time laws on the books.
How many breaks should an employee get?
The number of breaks an employee must get under state law varies. Depending on the state, 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.
On-duty vs. off-duty breaks
Due to the federal distinction between compensable 5- 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 enough, an employee could technically complain that they were not relieved of their responsibilities and the employer could be on the hook for backpay and other financial penalties.
What to do if an employee works through required breaks
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 disciplines 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 be sure to 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."
Balance workload to ensure required breaks can realistically be taken
To make matters more complicated, if an employee can reasonably claim that although company policy requires them to take a 30-minute unpaid break 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 mandated 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.
Key takeaway: The number of breaks employees should get varies from state to state. It is important to understand the difference between on-duty and off-duty breaks, as well as whether employee workload makes taking a break while meeting productivity standards a realistic goal.
Software tools for tracking employee time and attendance
There are many tools available for employers to automate the tracking of employee time and attendance. These tools can do many things, like allow 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."
Here's a look at some of our best picks for time and attendance software. For pointers on how to choose a time and attendance system for your business, see our best picks guide.
- TimeClock Plus starts at $24 per employee, per year and includes flexible service plans that can meet the need of a variety of employers.
- TSheets is a QuickBooks product that excels at providing time and attendance for mobile or remote workforces. It starts at $20 per month plus $5 per employee, per month.
- Stratustime starts at $4 per employee, per month and provides key features like PTO management, automatic alerts, job forecasting and advanced reporting.
- uAttend starts at $20 per month for up to 9 employees, with higher pricing tiers for more employees. It offers a cloud-hosting time and attendance system that is relatively flexible for very small businesses.
Key takeaway: There are many time and attendance systems on the market that you can use to track employee meal and rest break times to ensure compliance with company policy and state law.