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Employers must know the rules for different kinds of work breaks

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The Fair Labor Standards Act (FLSA) does not require employees (other than minors) receive any breaks, either paid or unpaid.  FLSA regulations outline only when breaks must be paid if they are offered at the employer’s discretion.

There is one exception with the implementation of the new federal Patient Protection & Affordable Care Act.  Under the FLSA, employers must now must provide nonexempt mothers with the time and space to express breast milk for one year after the birth of a child.  Few employers limit this right to nonexempt employees only, and many states have laws that that are stricter than the federal law.

The regulations divide breaks into two categories:  rest breaks and meal breaks.  In terms of payment, different rules apply depending on the type of break.

Rest breaks:  Regulations stipulate that an employer must pay workers if the period is 20 minutes or less. Breaks lasting five to 20 minutes are common and promote efficiency.

Meal breaks:  Regulations stipulate that ordinarily an employer must pay workers if the break is less than 30 minutes.  The regulations leave open the possibility that shorter meal periods may be noncompensable in special circumstances.  However, the burden is on the employer to prove that special circumstances apply for justifying the shorter break.

Keep in mind the regulations do not always fit today’s work place.  Sometimes it is hard to tell whether a break is to rest or to consume a meal.

For this reason it is not surprising that some U.S. Department of Labor (DOL) investigators, as a matter of enforcement, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes.  By doing this, they don’t have to engage in a break-by-break analysis.

In such cases, the DOL’s position is inconsistent with its own regulations and case law.  But a 30-minute rule does avoid litigation over that issue.

Even if a meal break is 30 minutes it does not mean it automatically occurs without pay.  The employer must consider the length of the break and whether the employee is free from work.  If the employer requires the employee to stay in his or her work area, they may have to pay the employee, even if the break is 30 minutes or more.  Similarly, if the employer asks an employee to do any work during the break, the employee may have to be compensated for the entire break.





Debbie Strahle, Partnership Manager