Federal lunch and work break laws

Over half of U.S. workers take a 30-minute lunch break, according to a 2019 Quickbooks Time survey. Another 25% report taking 60-minute breaks, while 12% say they take only 15 minutes. 3% don’t take lunch breaks at all. The average lunch break for Americans is about 36 minutes. 

Unfortunately, many American workers aren’t guaranteed a lunch break. Some businesses might offer breaks as a benefit, but knowing what counts as a paid or unpaid break can be tricky. Plus, “working lunches” can add a layer of complication. 

Understanding break laws can help business owners stay out of legal trouble. To help clarify federal rest and lunch break laws and explain the consequences of noncompliance, we asked the experts to weigh in.¹ 

The Fair Labor Standards Act (FLSA) does not require business owners to offer lunch or rest breaks to employees. However, the Department of Labor (DOL) and the FLSA outline requirements for paid and unpaid breaks. And while federal law doesn’t require breaks, 20 states maintain their own break laws. Nine of those mandate lunch and rest breaks.

The DOL considers short breaks (those lasting 20 minutes or fewer) paid work hours. So business owners must include them in an employee’s total hours worked per week. Employees should track short breaks, as this time contributes to their total hours and could be overtime.

If an employee extends a short break without authorization, the business does not have to pay for that time. However, the business must have guidelines explaining how long breaks should last. 

Typically, business owners do not have to pay workers for meal or rest breaks that last 30 minutes or more. However, employees must be relieved from all work duties for the break to qualify as unpaid. If an employee chooses to eat while working or is asked to return to work early, their employer must pay them.

The FLSA does not guarantee breaks for exempt employees. Exempt employees receive meal and rest breaks at their employer’s discretion. Because the FLSA only has laws around which breaks should be paid (short breaks) and unpaid (lunch breaks), employers must understand the difference. In general, federal break laws only apply to the FLSA’s guidelines on paying nonexempt employees for all hours worked, including short breaks. Regardless, all workers—exempt and nonexempt—should track time and record their meal and rest breaks.

Employees should clock out for lunch breaks, as long as they are not working during that time. If an employee works during a lunch break, business owners shouldn’t deduct hours from their timesheets automatically or force them to clock out. The consequences for not paying employees for all time worked can be costly. Employers who force their workers to clock out for breaks run the risk of a wage and hour lawsuit. The FLSA requires businesses to pay employees for all time worked, even when employers don’t authorize employees to work during their breaks. 

“One of the most common problems,” Rotman elaborates, “occurs when employers enable automatic deductions for lunch breaks without giving the employee any manner of editing that time if they happen to work through lunch.” 

Key takeaway: 

Never force employees to clock out for breaks if they’re working during their break time. Draft a break policy that clarifies the types of breaks employees can take, the length of each break, and how to track breaks. Not paying employees for all time worked is a form of wage theft that can lead to a wage and hour dispute with workers.

As there is no federal law requiring breaks, there are no regulated limits on how long someone can work without a break. However, state laws can be more restrictive. For example, some workers in California may be entitled to a half-hour break when they work more than five hours in a day. Employers and employees may mutually agree to waive the half-hour break if the workday will be completed in fewer than six hours. 

“The most common issues we see regarding meal and rest periods occur in states like California,” explains Kun, “where state laws—rather than the FLSA—require that employees be provided those breaks at certain times during the day. Employees are entitled to significant penalties if they are not provided breaks in compliance with the law.”

The FLSA does not have laws regarding bathroom breaks. Typically, bathroom breaks are like any other paid break. The Occupational Safety and Health Administration (OSHA) requires business owners to provide bathrooms on-site (or no more than 10 minutes away from the job site). Business owners can’t limit an employee’s access to those facilities. 

Additionally, the Equal Employment Opportunity Commission (EEOC) considers bathroom access a reasonable accommodation for those who are pregnant or have other medical needs. Limiting bathroom access could be a violation of the Americans with Disabilities Act (ADA).

Currently, 20 states, Guam, and Puerto Rico have meal period requirements for employees, according to the DOL. Among those, nine states require rest breaks for employees who work more than a few hours. 

The states and territories that require breaks include:

1. California (meal and rest breaks)
2. Colorado (meal and rest breaks)
3. Connecticut (meal breaks)
4. Delaware (meal breaks)
5. Illinois (meal and rest breaks)
6. Kentucky (meal and rest breaks)
7. Maine (meal breaks)
8. Maryland (meal breaks)
9. Massachusetts (meal breaks)
10. Minnesota (meal and rest breaks)
11. Nebraska (meal breaks)
12. Nevada (meal and rest breaks)
13. New Hampshire (meal breaks)
14. New York (meal breaks)
15. North Dakota (meal breaks)
16. Oregon (meal and rest breaks)
17. Rhode Island (meal breaks)
18. Tennessee (meal breaks)
19. Vermont (meal and rest breaks)
20. Washington (meal and rest breaks)
21. West Virginia (meal breaks)
22. Guam (meal breaks)
23. Puerto Rico (meal breaks)

OSHA does not have any current regulations regarding employee breaks. However, state health and safety laws may differ. OSHA requires employers to provide access to clean bathrooms when an employee needs to use the restroom. Employers may require workers to request a replacement for their post before they leave to use the restroom, as long as the wait isn’t long. This system may be helpful for production lines, retailers, bus drivers, etc.

Some states have laws for when employees can take breaks, and the number of breaks employees can take per shift. These laws can be complicated and leave business owners struggling to comply.

“The claims we often see are that employees are not allowed to take their breaks at all, they’re allowed to take them too late, their breaks aren’t long enough to satisfy the law, or their breaks are interrupted,” Kun notes. 

Other common problems occur when employers deduct breaks from an employee’s time card automatically or ask someone to work through their lunch breaks. Whether that’s intentional or a flaw in the employer’s time tracking system, it could lead to significant back pay.

“As a result, [these employees] have been underpaid for 30 minutes. Now, if an employee alleges that this happened every day, [they] would have a claim for two and half hours of unpaid work each week, some or all of which might be considered overtime if it falls beyond 40 hours. If you multiply that by the number of weeks the employee worked, you can see how the amount of underpayment a single employee might claim could be significant.”

As with most labor law compliance concerns, the best strategies come down to employee time tracking and good record-keeping. 

“Employers should have an avenue for an employee to edit time if [they] work through lunch. Employers should also keep good records of any such edited time,” Rotman explains.

Kun continues, “To avoid issues relating to breaks under the FLSA, many employers...implement policies reminding employees and their managers that [time] records need to be accurate, that employees should report any additional time worked, and that employees should not be interrupted during breaks.”

Key takeaway: 

Employers should require employees to track rest and meal breaks using a reliable time tracking system. If lunch breaks are deducted from employee time cards automatically, employees should be able to edit their time cards to reflect time worked.

A lack of federal guidelines can confuse business owners, and the laws around breaks are a prime example. Rotman notes that the most common misconception is that breaks are required at all.

“The most common misconception about breaks or lunches is that they must be paid or even provided,” she said. “The FLSA does not mandate that breaks or meal periods be provided, but some state laws do mandate such breaks. So employers should check applicable state laws. Generally, if a break period is 30 minutes or more, it can be unpaid. If it is 20 minutes or fewer, it must be paid. The time between 20 and 30 minutes is a bit murky, but the least risky approach is to pay for that time.”

Confusion around these laws can trickle down to employees. As Kun explains, ensuring managers and employees understand break laws can help prevent future issues. 

“Some employers may believe that all employees and managers understand when breaks should be taken, how long they should last, or whether employees should be interrupted or asked to do work when on a break,” he said. “These are issues where it never hurts to provide additional training.”

Key takeaway: 

The FLSA does not mandate meal or rest breaks, but many state laws do. Check with your employment counsel to determine whether or not you must provide breaks. Then make sure your employees understand when and how you expect them to take and record breaks.

If an employer is not following state law or paying an employee for meal breaks, then the employee is entitled to back pay. Not paying for breaks is a form of employee wage theft. In the event of a labor dispute, business owners may be subject to penalties and legal fees, in addition to employee back pay. 

As Kun explained, not paying employees for their meal breaks (when they’ve worked through them) can add up fast. Even 30 minutes a day can add up to over two hours a week. Multiply that by the number of weeks in a year. That’s a lot of money that the employee is not being paid. 

Key takeaway: 

Consult your employment counsel if you’re unsure of your state break laws. If an employee says they worked through a break, err on the side of caution and pay your employees for all time worked.

Because of the lack of federal laws around breaks, business owners can get lost in the weeds. Seeking legal counsel from an employment law expert can help you navigate federal and state break laws. 

• The FLSA and OSHA do not mandate employer-provided breaks, but state laws might. 
• It’s not uncommon for an employee to work through their break or get called back to work during their break. If that’s the case, they should be paid for that time.
• If breaks are deducted from employee time cards automatically, employees should be able to edit their time cards to reflect all time worked. 
• Employers should require employees to use time tracking software to track breaks and lunches.

Staci Ketay Rotman,  shareholder at Littler Mendelson PC, advises and represents employers in all aspects of labor and employment law. She represents clients before federal and state courts and administrative agencies, as well as in arbitration proceedings. Staci has experience with class actions, multi-plaintiff litigation, TRO/preliminary injunctions and trials. She uses her litigation experience to counsel employers on how best to achieve their business objectives while minimizing the risks of litigation. She also advises and represents employers on the Fair Labor Standards Act and related state statutes, ranging from worker classification audits to claims alleging unpaid wages.

Michael S. Kun is a member of Epstein Becker & Green in the Employment, Labor, and Workforce Management practice. And he’s the national Chairperson for the firm’s Wage and Hour practice group. Kun speaks to professional and business groups on a variety of employment topics, and he is the co-editor of the wage and hour defense blog. Kun is a co-creator of the Wage & Hour Guide for Employers app, which provides employers with access to federal and state wage and hour laws.