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Your Rights Meal and Rest Breaks

This page provides answers to the following questions:

1. My employer doesn't give me any time off to eat during my eight-hour shift. Is this against the law?

2. My employer doesn't give me any rest breaks during my eight-hour shift. Is this against the law?

3. Who is covered by the law?

4. My employer gives me a meal break, but does not pay me for it. Is this legal?

5. My employer allows me two rest breaks during the day, but does not pay me for them. Is this legal?

6. I'm supposed to get an hour off for lunch, and I'm not paid for that time. However, there's too much work to do, so I never get to take the full hour off and often eat at my desk. Is this legal?

7. My employer doesn't allow meal or rest breaks, but I need break time during the day in order to practice my religion. I am willing to make up the time, but my employer refuses. Is this legal?

8. My employer doesn't allow meal or rest breaks, but I need break time during the day in order to tend to my health needs. I am willing to make up the time, but my employer refuses. Is this legal?

9. Because of a problem with some employees taking too many breaks, my employer has cracked down. Now we have to get permission from a supervisor before going on break, and we can never find someone when we're ready to go on break. Is this legal?

10. Do younger workers (minors) have different meal and break provisions?

11. In our office, smoking is not allowed, so smokers have to leave the building to smoke. This means smokers get to take breaks all the time, while non-smokers stay at their desk and work. This doesn't seem fair to me.

12. Is there any law that applies to bathroom breaks? I work on a production line, and my employer only allows bathroom breaks during certain times in order to keep the line moving. This can be very hard on people, to say the least, and can present a health hazard.

13. Who enforces the law?

14. What are the remedies available to me?

15. How do I file a complaint/How long do I have to file?

16. More Information About Meal and Rest Breaks

1. My employer doesn't give me any time off to eat during my eight-hour shift. Is this against the law?

Many employers choose to give their employees meal breaks, as it is good for employee morale, encourages social relationships between employees, prevents burnout, and can improve productivity. However, it may come as a surprise to you and your stomach that the federal law governing labor standards, the Fair Labor Standards Act, does not require employers to give their employees any meal breaks. (Whether an employee is paid for his or her meal breaks that he or she is allowed to take may be a matter of federal law; see question 4 for further information.)

Only 19 states have provisions requiring employers to give their employees meal breaks. Employers may also be bound by collective bargaining agreements (in unionized workplaces) or other state labor regulations which require breaks.

If you work in one of the states where there is no law and you are not bound by any other agreement, then your employer is only voluntarily giving you a meal break if you have one. Your employer is free to revoke that policy at any time, or may make any appropriate modifications or limitations it chooses.

2. My employer doesn't give me any rest breaks during my eight-hour shift. Is this against the law?

Many employers also choose to give their employees rest breaks, even if the law does not require them to do so. However, you may not know that the federal law governing labor standards, the Fair Labor Standards Act, does not require employers to give their employees any breaks from work for any reason. (Whether an employee is paid for the breaks that he or she is allowed to take may be determined by federal law; see question 5 for further information) .

Only 7 states have provisions requiring that employers give their employees rest breaks. Employers may also be bound to provide breaks by collective bargaining agreements (in unionized workplaces) or other state labor regulations.

If you work in one of the states where there is no law, then your employer is only voluntarily giving you rest breaks if you have them. Your employer is free to revoke that policy at any time, or may make any appropriate modifications or limitations it chooses.

3. Who is covered by the law?

More than eighty million American workers are protected (or "covered") by the Fair Labor Standards Act (FLSA). Employers whose enterprises are covered by the FLSA, or who have employees engaged in interstate commerce (the generation of income over state lines by various means) are required by the FLSA to pay employees for time worked, as defined by the law. Unlike some other laws relating to employment, the standard does not hinge upon how many employees the employer has, but instead looks at the nature of the work performed by the enterprise and the employee to determine whether interstate commerce is involved. In addition, if a business generates income of $500,000 per year, it is subject to federal labor laws. For more information, please see our minimum wage section.

The FLSA does not require that employers offer meal or rest breaks. However, the FLSA does require employees to be paid for "hours worked," and distinguishes between rest breaks and meal breaks. Rest periods are generally paid time (see question 5 below), while meal breaks are generally unpaid time (see question below.)

For employees not covered by the FLSA, meal and break provisions may be covered under state law, if the employee lives in one of the few states with laws requiring meal and break periods.

4. My employer gives me a meal break, but does not pay me for it. Is this legal?

Under the FLSA, meal breaks are generally not considered work time, and are not required to be paid, as long as two criteria are met:

The employee is completely relieved from duty for the purposes of eating regular meals.

The meal period is 30 minutes or more (unless special conditions exist.)

Employee are not considered "completely relieved from duty" if they are required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at her desk or a factory worker who is required to be at his machine is working while eating. For more information, see FLSA Regulations on Meal Periods.

For employees not covered by the FLSA, meal and break provisions may be covered under state law, if the employee lives in one of the few states with laws requiring meal and break periods.

5. My employer allows me two rest breaks during the day, but does not pay me for them. Is this legal?

Under the FLSA, rest periods of short duration (for example, five to twenty minutes) are considered to make employees' work more efficient, and are customarily paid for as working time. They must be counted as hours worked, and cannot be offset against other time for which workers must be paid, such as waiting time or on-call time. For more information, see FLSA Regulations on Rest Periods.

If you extend your break beyond the time authorized by your employer, your employer may deduct the excess time from your hours worked, as long as

the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time,

that any extension of the break is contrary to the employer's rules, and

that any extension of the break will be punished.

For employees not covered by the FLSA, meal and break provisions may be covered under state law, if the employee lives in one of the few states with laws requiring meal and break periods.

6. I'm supposed to get an hour off for lunch, and I'm not paid for that time. However, there's too much work to do, so I never get to take the full hour off and often eat at my desk. Is this legal?

It depends. Most states do not require that your employer give you a full hour for meal time (the most common standard is 30 minutes), so your employer may not be required to give you a full hour off. If your employer chooses to give you a full hour off each day, your employer is not obligated to pay you for that time. However, if you are not completely relieved from duty for at least part of that time, then you should be paid for your working time.

For example, if your state requires your employer to give you a 30-minute unpaid break, and you typically take thirty minutes to eat and work through the other half of your lunch hour, then you should be paid for an additional thirty minutes each day. In this situation, the employer may not have violated the state law relating to providing lunch breaks, but may be violating federal and/or state law for not paying you for time worked. However, you should clarify with a supervisor or HR representative whether you should take the entire hour off and not do any work, or whether the company intends to start paying you and any other employees in a similar situation for the time worked.

7. My employer doesn't allow meal or rest breaks, but I need break time during the day in order to practice my religion. I am willing to make up the time, but my employer refuses. Is this legal?

It depends. When your employer's workplace policies interfere with your religious practices, you can ask for what is called a "reasonable accommodation:" a change in a workplace rule or policy which would allow you to engage in a religious practice without conflicting with your work obligations.

Your employer is required to provide you with such an accommodation unless it would impose an "undue hardship" on the employer's business, defined as an accommodation that is too costly or difficult to provide. It is important for you to work closely with your employer to find an appropriate accommodation.

Whether your employer can accommodate your religious practices, such as prayer or Bible study, will depend upon the nature of the work and the workplace. Usually, your employer can allow you to use lunch or other break times for religious prayer. While the employer may argue that giving breaks to only one employee would be an undue hardship, a number of factors must be balanced to determine whether it will be too costly or difficult to provide this accommodation in your workplace.

If you require additional time for prayer or must go to another location away from your immediate work area, you can still be accommodated if the nature of your work makes flexible scheduling workable, but your employer can require you to make up the time.

8. My employer doesn't allow meal or rest breaks, but I need break time during the day in order to tend to my health needs. I am willing to make up the time, but my employer refuses. Is this legal?

It depends. If you are able to perform all of the essential functions of a job, except for those your disability prevents you from performing, the Americans with Disabilities Act and many state disability laws require that your employer provide you with a "reasonable accommodation," which is an adjustment or modification provided by an employer to allow you to enjoy equal employment opportunities as individuals without disabilities.

Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. Additional or more frequent breaks are a form of reasonable accommodation. For example, an employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels, while an employee with cancer and undergoing radiation or chemotherapy treatments may need more frequent rest breaks. It is important for you to work closely with your employer to find an appropriate accommodation for your disability.

An employer is not required to make an accommodation for a known disability of a qualified applicant or employee if it would impose an "undue hardship" on the employer's business. Undue hardship is defined as an accommodation requiring "significant difficulty or expense." An employer is not required to lower quality or production standards to make an accommodation, or excuse violations of conduct rules necessary for the operation of an employer's business. While the employer may argue that giving breaks to only one employee would be an undue hardship, a number of factors must be balanced to determine whether it will be too costly or difficult to provide this accommodation in your workplace.

If you require additional time for breaks or must go to another location away from your immediate work area, you can still be accommodated if the nature of your work makes flexible scheduling workable, but your employer can require you to make up the time.

If you are not considered disabled under the ADA, your employer may not have a legal obligation to give you breaks. However, you should still talk with your managers and/or the company's HR department to see whether the company is willing to accommodate your needs voluntarily.

9. Because of a problem with some employees taking too many breaks, my employer has cracked down. Now we have to get permission from a supervisor before going on break, and we can never find someone when we're ready to go on break. Is this legal?

Unless you live in one of the seven states in which employers are required to provide breaks, or otherwise governed by a provision requiring breaks (such as union or government employees), you may not have a legal remedy for this problem.

As mentioned above, most employers who give breaks to their employees do so voluntarily, and not because the law requires them to do so. This means they are allowed to place limitations on the breaks to maintain production or productivity standards, or for any other reason the employer considers important.

Employees who have difficulty with their employer's break policy may wish to contact their company's HR department and/or speak with an appropriate supervisor, to see whether the employer will consider implementing a more workable break policy that still allows employees to take breaks without abusing the system.

10. Do younger workers (minors) have different meal and break provisions?

Even the states that do not have meal and break provisions for adult workers commonly have provisions requiring that workers under age 18 receive more frequent or longer breaks than adult employees receive.

Your state labor department and/or the federal Department of Labor may also be able to provide you additional information and assistance. More information about youth and child labor may be found at the following Department of Labor web site page: http://www.dol.gov/dol/topic/youthlabor/index.htm

11. In our office, smoking is not allowed, so smokers have to leave the building to smoke. This means smokers get to take breaks all the time, while non-smokers stay at their desk and work. This doesn't seem fair to me.

An increasing number of states have laws banning smoking in all workplaces. Also, a number of employers and/or buildings have policies limiting smoking inside or within close proximity to work facilities, requiring smokers to travel some distance away from their immediate work areas in order to be able to smoke.

Employers vary widely in their reaction to such policies. Some choose to accommodate smokers by allowing more frequent breaks (or even allowing smoking within the work facility where it is still legal to do so), while others have chosen to discourage smoking by making it as difficult as possible for employees to smoke during the work day. However, the vast majority of states do not regulate breaks at all, and even those which have laws do not prevent an employer from offering more breaks than the law requires.

Employees who have difficulty with their employer's break policies therefore do not have a legal remedy. They may wish to contact their company's HR department and/or speak with an appropriate supervisor, however. Perhaps the employer will recognize the unfairness and set clear policies applicable to all employees, either by limiting the number of breaks smokers are allowed to take, or making clear that even non-smokers are entitled to take a certain number of breaks during the work day. Or non-smokers can just consider it an opportunity to get more work done during the day and hope that their productivity will ultimately be rewarded.

12. Is there any law that applies to bathroom breaks? I work on a production line, and my employer only allows bathroom breaks during certain times in order to keep the line moving. This can be very hard on people, to say the least, and can present a health hazard.

The ability to take bathroom breaks should not be considered a privilege. Denying workers their rights to use the bathroom facilities as needed could be to the detriment of a worker's health. Denying workers the ability to use the restroom when they need to, or with unfair delays or obstacles, is a violation of workers' rights and an affront to dignity.

There is not a federal law that specifically applies to the number and duration of bathroom breaks. However, there are Occupational Safety and Health Administration (OSHA) regulations which require employers to provide adequate bathroom facilities, and prevent employers from imposing "unreasonable restrictions" on bathroom use. The intent of these regulations is that employees are able to use bathroom facilities promptly, recognizing that the frequency of bathroom visits necessary may vary among employees, depending on factors such as the temperature, medical conditions and the effects of medication, and fluid intake.

In production environments where the absence of one or more individuals can adversely affect a productive work flow, OSHA recommends the adoption of a signal system, so that employees can request relief by signaling for another employee to take the spot on the work station. If employees are not being forced to wait an unreasonable amount of time for bathroom use, a system like this complies with OSHA regulations.

13. Who enforces the law?

The FLSA is enforced by the Wage-Hour Division of the U.S. Department of Labor. Wage-Hour's enforcement of FLSA is carried out by investigators stationed across the U.S., who conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine whether an employer has complied with the law. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.

It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.

Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage requirements are subject to a civil money penalty of up to $1,000 for each such violation.

The FLSA makes it illegal to ship goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

To contact the Wage-Hour Division for further information and/or to report a potential FLSA unpaid wage violation, call:

Toll Free: (866) 4USWAGE (866-487-9243)
TTY: (877) 889-5627 (available Monday-Friday 8 a.m. to 6 p.m. Eastern Time)

You may also contact your local WHD office.

If you need further information about your state's meal and/or rest breaks law and/or wish to report a potential state law violation, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

14. What are the remedies available to me?

There are several different methods under the FLSA for an employee to recover unpaid wages (which includes break time for which the employee should have been paid); each method has different remedies.

Wage-Hour may supervise payment of back wages.

The Secretary of Labor may bring suit for back wages and an additional penalty, called "liquidated damages," which can be equal to the back pay award (essentially doubling the damages) if an employer willfully violated the statute.

An employee may file a private lawsuit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs. An employee may not bring a lawsuit if he or she has been paid back wages under the supervision of Wage-Hour or if the Secretary of Labor has already filed suit to recover the wages.

The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

Your state law may have different methods for recovery of unpaid wages and/or violations of the state's meal or break provisions, and different remedies to be awarded to those who succeed in proving a violation. For further information, please contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

15. How do I file a complaint/How long do I have to file?

To file a complaint for unpaid wages under the FLSA, you may either go to the WHD, which may pursue a complaint on your behalf, or file your own lawsuit in court (which may require you to hire an attorney).

Do not delay in contacting the WHD or your state agency to file a claim. There are strict time limits in which charges of unpaid wages must be filed. To preserve your claim under federal law, you must file a lawsuit in court within 2 years of the violation for which you are claiming back wages, except in the case of an employer's willful violation, in which case a 3-year statute applies. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

Your state law may have different deadlines for recovery of unpaid wages and/or violations of the meal and break laws. For further information, select your state from the map below or from this list.


united states map Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii Puerto Rico

 

16. More Information About Meal and Rest Breaks:

Department of Labor: Meal and Break Periods
Minimum Length of Meal Period Required Under State Law for Adult Employees in Private Sector
Minimum Rest Period Requirements Under State Law for Adult Employees in Private Sector

This page was updated on February 28, 2012



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