As we roll into summer, many food and retail businesses are hiring summer staff. As seasonal businesses hire new employees, and as the weather gets warmer, a question that employers are almost guaranteed to face is: When can I take my break?
This blog is merely a refresher for this timeless question. As long as there are humans employed, employers will have to face this question.
Let’s Look at Federal Law First….
There is no Federal Law that requires meal and rest breaks. In fact, the Federal Regulations are clear that Rest Periods of Short Duration (5-20 minutes) are counted as hours worked. In other words, they must get paid for this time. The Department of Labor concedes that these Rest Periods of Short Duration are common in the industry. The DOL goes even further to say that oftentimes, these Rest Periods of Short Duration promote the efficiency of the employee.
Employers Must Look to State Law as Well…
As always, it is not enough to look to federal law. Employers must assess each state where they have employees performing work. Some states require employers to provide employee breaks. Briefly:
- Pennsylvania. The Commonwealth of PA does not require employee breaks.
- Vermont. The State of Vermont statute reads: “An employer shall provide an employee with reasonable opportunities during the work periods to eat and to use the toilet facilities in order to protect the health and hygiene of the employee.” Businesses with employees working in Vermont should consult with counsel to clarify what is a “reasonable opportunity.”
Let’s Look at Federal Law First…
The Federal Law is clear that a meal break is NOT work time and therefore is not compensable. If an employer decides not to pay an employee for their meal breaks, it is crucial that the meal break is, in fact, a true meal break under the law. The FLSA regulations provide some guidance as to what is a Bona Fide Meal Break:
- Ordinarily, 30 minutes or more is long enough for a Bona Fide Meal Break;
- A Bona Fide Meal Break is NOT a “coffee break” or a “snack break.” Coffee or snack breaks are rest periods. (see above). These Rest Periods are considered compensable time.
- Employee must be completely relieved from duty for the purposes of eating a regular meal. In other words, an employee cannot be required to perform any work while on their Meal Break. For instance, an employee who eats their lunch at their desk while checking emails is not on a Bona Fide Meal Break.
Employers who choose not to compensate their employees for a meal period must ensure that the written policies are clear that the employee is not required nor allowed to work during their meal break.
Employers Must Look at State Meal Break Laws:
Again, employers must look to each state where they have employees working and confirm whether there is a meal break law. Briefly, the Third Circuit (DE, NJ, PA, VI) uses the Predominant Benefit when assessing whether a meal break is, in fact, Bona Fide. The Court explained that the analysis into meal breaks is a fact-intensive inquiry. In other words, courts will take this issue on a case-by-case basis. With that being said, the Third Circuit was clear that:”
The essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are, in fact, relieved from work for the purpose of eating a regularly scheduled meal.
Admittedly, the Third Circuit merely reiterates the federal regulation. With that being said, employers in these jurisdictions should look first at the state law, then the applicable case law. Prudent employers will incorporate language from the regulations and the courts in their written policies.
Employers should look to their state laws. For instance, Pennsylvania explains that mealtimes can be excluded from working time so long as the employee is not required nor permitted to work during that time. So, an employer that does not want to compensate its PA employees for their mealtime must ensure that the employees are PROHIBITED from working during their meal break. It is not enough in PA for an employer to say that the work was not required. PA employers must explicitly state that their employees are not allowed to work during their meal breaks.
Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day-to-day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.
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