Contrary to popular belief, neither federal nor state law requires that employers provide a break period for their employees. Federal law provides: “Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.”1 While the law doesn’t require that employers provide break time, it encourages the practice. It also requires that when break time is provided, it is counted as work time and included in wage and overtime calculations. Wisconsin law also does not require break periods, although they are encouraged.

Federal law does not oblige employers to provide a meal break, but requires that if a meal break is allowed, it must be “bona fide,” that is, the employee must be completely relieved of duties in order to be able to eat a regular meal. Bona fide meal periods are “ordinarily” 30 minutes under federal law, but the law allows for a shorter period under “special circumstances.” Bona fide meal periods do not include breaks, which are rest periods that must be compensated and are in addition to meal periods. Employers do not have to pay wages for a bona fide meal period, but again, the meal period is not bona fide if the employee is required to perform other duties during the meal period. The non-compensable meal period has to be completely free from duties. Employers do not have to allow employees to leave the premises during a meal period under federal law.2

State law is a little different from federal law in relation to meal periods, and provides additional protections. State law, like federal law, does not specifically require that employers provide meal periods, although it prohibits employers from operating places of employment that are dangerous or prejudicial to the life, health, safety, or welfare of its employees as regards hours of work in any day, night, or week. State law recommends that employers allow at least 30 minutes for a meal period reasonably close to the usual mealtime for that meal, or near the middle of a shift. It recommends but does not require that shifts of more than 6 consecutive hours include a meal break. Meal breaks of at least 30 minutes, at the normal mealtime for that meal, are mandatory for employees under age 18.3

Like federal law, state law requires employers to pay for on-duty meal periods, but not for duty-free meal periods. To be counted as a non-compensable meal period, the employee has to have at least 30 minutes free from work. Unlike federal law, state law provides that any meal period where the employee is not free to leave the premises will be considered an on-duty meal period. See also October 8, 2011 blog post, “Can Employers Automatically Deduct Meal Breaks From My Pay?”

If your employer is having you work through lunch or prohibits you from leaving the premises for lunch, or is in any way violating your right to wages for all time worked, it is a good idea to keep a record of a) whether and how your supervisor knew you were working through lunch or during time for which you are not being paid, and b) what you did that constituted work during that period. A recent California Supreme Court case reversed orders that certified classes in a class action because, among other reasons, it found that there were too many individual questions of fact as to whether each employee’s supervisor knew they were working during time for which they were not paid, and even if they actually were working during such times. As we’ve said in other blogs, while individual claims may be too small to bring a lawsuit, when employees come together to fight the unlawful practice, the burdens and costs of the litigation are shared. That’s an important right to preserve by documenting an unlawful practice.

If your employer is not paying you for meal periods or breaks, please contact a Hawks Quindel wage and hour attorney for a free consultation.

1 29 C.F.R. Sec. 785.18.
2 29 C.F.R. Sec. 785.19.
3 Wis. Admin. Code Sec. DWD 274.02.

Summer Murshid

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