Many employers give their employees a break for lunch. Federal law does not require your employer to give you meal breaks. If your employer offers a bona fide meal break, however, it is not considered work time under laws like the Fair Labor Standards Act (FLSA), which is the federal wage and hour law.
Unlike rest breaks, meal breaks are not compensable except when certain exceptions apply. These exceptions include when your state’s law requires paid meal breaks, your company’s policy is to pay for meal breaks, or your break lasts 20 minutes or less. Generally, the last category applies because the shorter break is considered a rest break rather than a meal break, and it is considered part of your workday, so it must be compensated.
State Rules Regarding Meal Breaks
Less than half of the states require a meal break. Usually, these states require meal breaks for non-exempt employees but not exempt employees. Non-exempt employees are usually employees who work for hourly wages, such as secretaries, construction workers, and waiters. These are also workers who must be paid overtime at time and a half under FLSA for all hours worked in excess of 40 hours in a single five-day workweek.
Most often, in those states that mandate meal breaks, employees who work more than 5-6 hours at a stretch must be permitted to take half an hour to eat. Employers in these states may be required to communicate this requirement to non-exempt employees, but they are not required to ensure that employees take meal breaks. As long as a meal period is offered, it is unlikely that an employer will be found to have a duty to police meal breaks to make sure you are not doing work.
For example, your employer might have advised you that you have the right to a 30-minute meal break in California and have an express policy against your doing work during this period. You might still decide to get a few tasks done while you are eating and wind up working more than 40 hours in a week. In California, the employer satisfies its legal obligations related to giving non-exempt employees a meal break if it:
- Relieves employees of all their duties;
- Relinquishes control over their activities;
- Gives them a reasonable opportunity to take an uninterrupted 30-minute break; and
- Doesn’t discourage or prevent them from taking the break.
If an employer discourages non-exempt employees from taking meal breaks, it must pay them for that time.
In some states, such as Oregon, employers also have to provide employees with a second meal break of no less than 30 minutes on any workday when an employee works more than a set number of hours. In Oregon, a second meal break is required for employees who work 14 hours in a day, and a third meal break is required for employees who work 22 hours in a day.
Typically, employers in states that require meal breaks cannot elect to give time off at the beginning or end of the shift, and employees are not entitled to receive payment for this break. However, if you do have to work while eating on a break, you have the right to be paid for the time.
Failure to provide meal breaks in states that require them may be the subject of substantial litigation. In many cases, the amount that would be recovered for missed meal breaks would be insubstantial, and it would be impracticable to litigate for such a small sum, so several employees bring a class action lawsuit.