09 August 2021
When it comes to lunch breaks, it’s easy for managers to assume that a few minutes here and there won’t make a difference. That’s not true, and it can lead to costly lawsuits. Not only is federal guidance on the subject annoyingly vague, but the laws concerning paid and unpaid work breaks vary from state to state. The tangle of regulations is complex to navigate, especially for companies that operate in multiple states.
In 2019, wage and hour infractions were the most common cause of employment lawsuits, accounting for 40% of cases filed. In March this year, a single restaurant in Chicago was hit with $700k in fines for wage and hour violations. The stakes are high; the average value of a wage and hour settlement in 2019 was $8.2 million. If you’re responsible for scheduling staff, you need a top-level understanding of what break time legislation applies in your state in order to protect your company from painful Department of Labor investigations and lawsuits.
There is no federal law that requires companies to offer breaks during work hours for meals or any other purpose. Federal law only says that where a company does offer breaks, any break under 20 minutes should be paid (and will count toward overtime), and any over 30 minutes (such as meals) can be unpaid and classified as off-the-clock.
It’s hard not to notice that there’s a 10-minute gap in that official guidance, where the difference between a paid break and unpaid is left vague, and this is where companies can inadvertently expose themselves to penalties.
Josh Cameron, Workforce.com’s chief strategy officer, explains how this gray area can trip managers up. “Say you take a break for 21 minutes, is that paid or unpaid? Is it okay to make that unpaid? If you’re a lawyer looking at this, it’s really an opportunity because you can say, ‘This employee always had a 23-minute break, always had an 18-minute break, and they never got paid for it. Maybe they should have been.’ That’s something that employers should really be aware of and keep an eye on.”
Don’t be tempted to simply avoid offering paid lunch breaks, however. Even though many employees don’t use the full break allotted to them, a 2018 survey showed that the majority considered lunch breaks to be a consideration when applying for a job.
With the federal government leaving it up to states to decide how to legislate break times, there is inevitably a lot of variances. Right now, 21 states have laws that say employees are entitled to meal breaks, but the criteria for when these apply are inconsistent.
For example, California, Colorado, New Hampshire, North Dakota, and Washington all require workers to get a 30-minute paid break in working days of more than five hours. In 2016, Denny’s was hit with $950k in penalties for violation of California’s laws on this matter. Connecticut and Delaware have a slightly more complex system, requiring a 30-minute break somewhere after the first two hours and before the last two hours of any shift lasting at least 7.5 consecutive hours.
Different lunch break laws apply in Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont, and West Virginia. Thankfully, the Department of Labor has at least made it simple to find out exactly what laws apply where. The webpage for Minimum Length of Meal Periods has a drop-down menu where you can select your state and immediately see the basic standards you must adhere to, the governing body responsible for enforcement, and which staff the coverage extends to.
As with lunch breaks, there is no federal law regarding short breaks at work. Only nine states have local laws requiring employers to offer paid rest periods during work hours, but, as with meal breaks, there are regional specifics worth noting.
California not only requires a 10-minute break for every four hours worked, but that break must also be paid. California’s climate also impacts the legislation. The state law includes a mandated “recovery time” break for workers whose health is at risk from heat-related illness, such as kitchen workers or those working outside in the sun.
In Illinois, rest breaks are only required for hotel cleaners in counties with a population greater than 3 million and must include two 15-minute breaks per seven-hour shift. Workers are legally entitled to take these breaks in a “clean and comfortable” environment with tables and chairs and free drinking water. Other states are less precise regarding what is required. In Vermont, companies with more than one employee are simply obliged to provide “reasonable opportunities” for meals and bathroom breaks.
As with lunch break laws, the DoL offers a quick and easy checklist of which states have relevant laws and what they require.
The lack of precise national guidance and the variance between state legislation can be problematic for companies with locations in different states. It’s also easy for companies to lose track of when employee breaks consistently fall into the 10-minute limbo period where there is no official federal guidance. It’s up to businesses to get it right, and that means using every tool possible to maintain precise visibility over exactly how long employees are away from their work. Workforce.com allows you to easily set up specific local conditions, and then managers will be automatically alerted if any employee’s time and attendance records are in danger of being non-compliant.
The average time spent at lunch for U.S. workers is 36 minutes, but in office roles, in particular, it’s now common for staff to eat at their desks. Pre-pandemic, almost two thirds of U.S. workers did this, while 16% reported rarely taking lunch breaks at all. This is risky for companies for several reasons. Legal concerns aside, people who take lunch breaks are more productive, while employees who eat at work are more likely to eat unhealthily and be unhappy as a result.
Blurring the lines between work and break time in this way also makes it harder for managers to accurately assess and pay for hours worked, and the risk of penalties for non-compliance grows. Keeping spotless records of when employees are on break and for how long is your best protection against wage-and-hour claims. Workforce.com automatically logs time and attendance down to the second, so you’ll never have to search through old time cards and spreadsheets for the data you need.
There are two key things managers can do right now to ensure their business stays on the right side of the law. One is to understand and adhere to whatever legislation applies in your state. The other is to be clear as to what breaks are allowed, encourage staff to use these breaks fully, and ensure they are accurately recorded. Doing all of this manually is a huge task and prone to human error. Use employee scheduling software instead to automate the process and keep your business safe.
Written by Dan Whitehead
We build robust scheduling & attendance software for businesses with 500+ frontline workers. With custom BI reporting and demand-driven scheduling, we help our customers reduce labor spend and increase profitability across their business. It's as simple as that.
Hi, My name is Meg and this is my introduction to Workforce.com
Find out how Workforce.com powered vaccine sites with demand driven scheduling and attendance.
HR AdministrationIs your employee attendance policy and procedure fit for purpose?
As workplaces reopen, the traditional understanding of what it means to be “at work” have has changed—p...
compliance, HR technology, human resources
HR AdministrationShift bids vs shift swaps – which is right for your business?
Being flexible with shift work is good for business. Even before the pandemic created a nationwide staf...
HR technology, human resources, shift bid, shift schedule software, shift swapping
ComplianceThe 10-minute guide to 2021 labor law compliance
Labor laws are a potentially lethal minefield for companies, particularly in today’s turbulent labor ma...
compliance, HR, HR technology, human resources, labor law compliance