The Fair Labor Standards Act (FLSA) doesn't require that meal breaks or rest breaks be given to workers. However, when employers do offer short rest breaks, federal law considers the breaks as paid work time that must be included in the total hours worked during the week and used in determining whether overtime is owed. Additionally, all employers covered by the FLSA must comply with the break time for nursing mothers provision.
Some states do have requirements for meal breaks and rest breaks. If you work in a state which doesn't require meal breaks or rest breaks, these breaks are a matter of agreement between the employer and the employee (or the employee's representative).
Below, we will discuss state laws that provide for meal breaks and rest breaks. For more information, visit FindLaw's Wage and Hour Laws section.
Twenty states have generally applicable laws regarding required meal break time: California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia. The most common length of time for meal breaks among these states is a 30-minute break in approximately the middle period of the work day.
Generally, executive, administrative and professional employees, and outside salespersons are exempt from required meal break time. California law also exempts construction workers, commercial drivers, private security officers, and employees of utility companies if the employees are covered by a valid collective bargaining agreement and the agreement includes an express provision for meal periods for those employees.
Eight states have generally applicable laws regarding private sector required rest break time: California, Colorado, Kentucky, Minnesota, Nevada, Oregon, Vermont, and Washington. The most common length of time for rest breaks among these states is a 10-minute break during each 4-hour period of work.
Below are examples of states that provide for both meal break time and rest break time.
An employer can't employ an employee for more than five hours per day without providing the employee with a meal break of at least 30 minutes. If the total work period per day of the employee isn't more than six hours, the meal break may be waived by mutual consent of both the employer and employee.
A second meal break of at least 30 minutes is required if an employee works more than ten hours per day. If the total hours worked is no more than 12 hours, the second meal break may be waived by mutual consent of the employer and employee only if the first meal period wasn't waived.
An on-duty meal period is counted as time worked and is permitted only when the nature of the work prevents relief from all duties and there is a written agreement between the parties. The employee can revoke the agreement at any time.
In Brinker Restaurant Corp. v. Superior Court (2012), the California Supreme Court concluded that employers have to make meal breaks available to employees and relieve its employees of all duty during meal breaks, but employers have no obligation to ensure that employees take the meal break. Additionally, the court concluded that a first meal break generally must fall no later than five hours into an employee's shift, but an employer isn't obligated to schedule meal breaks at five hour intervals throughout the shift.
Employers must authorize and permit one paid, 10-minute rest break for each four hours worked or major fraction thereof. If practicable, the 10-minute rest break should occur in the middle of each work period. The 10-minute rest break isn't required for employees whose total daily work time is less than 3.5 hours.
Working through a rest break doesn't entitle employee to leave work early or arrive late. The 10-minute rest break isn't designed to be exclusively for use of restroom facilities. Suitable resting facilities are required to be in an area "separate from toilet rooms." Using the bathroom during the work period doesn't count as 10-minute rest break.
Employees are entitled to an uninterrupted and "duty free" meal break of at least 30 minutes when the scheduled work shift exceeds five consecutive hours of work. The employees must be completely relieved of all duties and permitted to pursue personal activities to qualify as a non-work, non-paid period of time.
When an uninterrupted meal period is impractical, due to the nature of the business or other circumstances, the employee is permitted to consume an "on-duty" meal while performing duties. The employee is permitted to fully consume a meal of choice "on the job" and be fully compensated for the "on-duty" meal period without any loss of time or compensation.
Every employer must authorize and permit rest breaks. If practicable, the rest break should be in the middle of each four-hour work period. A paid 10-minute rest break for each four hours or major fractions thereof is permitted for all employees. Such rest breaks can't be deducted from the employee's wages. It's not necessary that the employee leave the work premises during rest break.
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Because state laws differ with respect to required meal breaks and rest breaks, you should review your state's law to determine your rights as an employee. If you need help understanding your rights, or legal assistance, a legal professional can provide an analysis of the laws and facts specific to your situation. Contact a local attorney for a free initial case review to learn how they can help.