Breaks and meal periods

Scope

Employers typically grant breaks and meal periods for employees.

Regulatory citations

• None

Key definitions

• Undue hardship: A significant difficulty or expense when considering the size, financial resources, nature, and structure of the employer’s business.

Summary of requirements

If employers choose to offer short breaks, usually lasting between 5 to 20 minutes, the breaks must be considered hours worked and employees paid for the time. A number of states have adopted rest period requirements.

Breaks that extend beyond the employer’s authorized work break time need not be counted as hours worked. Employees must:

• Be aware of the number of minutes that constitutes an authorized break time; and
• Understand that any extension of the break is contrary to the employer’s rules, and unauthorized extensions of the break will be subject to discipline.

If state law does not prohibit the following, employers may refuse to pay for unauthorized extensions of break periods. Here is what the federal Wage and Hour Division’s Field Operations Handbook has to say (see “Rest Periods” at www.dol.gov/whd/FOH/FOH_Ch31.pdf):

“Unauthorized extensions of authorized employer breaks are not counted as hours worked for an employee when the employer has expressly and unambiguously communicated to the employee that:

1. The authorized break may only last for a specific length of time;
2. Any extension of such break is contrary to the employer’s rules; and
3. Any extension of such break will be punished.”

The Wage & Hour Division has an Opinion Letter to clarify this provision (FLSA2001-16, Compensability of break time) which says, “Only the length of the unauthorized extension of an authorized break will not be considered hours worked when the three conditions are met, not the entire break.”

For example, you might authorize a break of up to 15 minutes. If the employee takes 25 minutes, you still have to pay for the 15 minutes that would have been authorized, but you don’t have to pay for the other 10 minutes.

Breaks for nursing mothers. The Patient Protection and Affordable Care Act of 2010 (PPACA) signed on March 23, 2010, included a provision to require lactation accommodation breaks for nursing mothers by adding paragraph (r)(1) to Section 7 of the Fair Labor Standards Act. The law, however, did not apply to exempt employees.

In 2022, the federal “Providing Urgent Maternal Protections for Nursing Mothers” or PUMP Act, expanded these provisions to include exempt employees.

The law requires employers to provide:

• Reasonable break time for an employee to express breast milk for one year after the child’s birth; and
• A room or location for the employee to use, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public.

Employers are not required under the FLSA to pay nursing mothers for breaks taken for the purpose of expressing milk. Where employers already provide compensated breaks, however, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. No deductions should be taken from an exempt employee’s salary for time spent on pumping breaks.

The frequency of breaks needed to express breast milk as well as the duration of each break will likely vary.

If an employer has fewer than 50 employees (counting all employees regardless of work site), and can show that providing breaks for nursing mothers would cause an undue hardship, the requirements do not apply.

Also, employers should check state laws regarding break periods, and particularly laws regarding nursing mothers or payment for break times of short duration. The federal law specifically indicates that state laws which offer greater protection to the employee must be followed.

Meals. Federal law does not require that employers provide meal periods. Bona fide meal periods, which typically last between 30 to 60 minutes, serve a different purpose than a coffee or snack break. During meal periods, the employee must be completely relieved from duty. Meal periods are not considered hours worked, and not compensable.

However, if the employee is not totally relieved of job duties during the time spent eating a meal, then the employee must be paid for that time. Examples includes office employee who must remain at their desk to answer the telephone over the lunch period or factory workers who are required to monitor their machines while eating lunch.

It is not necessary that employees be permitted to leave the premises if they are completely freed from duties during the meal period.

A number of states have adopted meal period requirements.