I see this problem all the time…Here’s the scenario: You grant nonexempt employees two 10-minute work breaks a day, for which you pay them. That’s in addition to their unpaid lunch break. Problem is, most of your employees have gotten used to extending the 10 minutes to 15 or 20. You sent out a reminder memo that only 10 minutes are allowed, but it had no effect. Now what?
According to the U.S. Labor Department (DOL), you can refuse to pay employees for any more than 10 minutes, under the Fair Labor Standards Act (FLSA). FLSA doesn’t require you to provide workbreaks (except for a recent change regarding lactation breaks), but many employers do so. And, FLSA’s position has been that such breaks tend to refresh employees and make them more efficient. But does that mean you can’t limit the amount of time you wish to grant? No, it doesn’t.
DOL’s internal enforcement manual advises that unauthorized break extensions need not be classified as work time. But here’s the catch: You absolutely must advise employees that
- authorized breaks are limited to X minutes;
- any extension of those breaks is against the rules; and
- such extensions will be punished through disciplinary action
If you’re having a problem with overextended work breaks, you need not only to adopt a policy like the three-point one detailed here, but also to be able to show in court that you’ve informed employees of it frequently and regularly enough that they are fully aware of it. Document -document – document!!! Follow your “Progressive Disciplinary” policy.
Consider that there may be at least three different kinds of breaks: Bona fide meal breaks that are not typically compensated, “short” rest breaks of 20 minutes or less that are typically compensated, and other kinds of breaks—neither meal breaks nor short rests but including lactation breaks—which may or may not be compensated. Many employers assume that when an employee stretches a 10-minute to 20 minutes, FLSA doesn’t allow the extra time to be treated as noncompensable.
Short rest breaks need not be an either/or proposition—paid or unpaid. They can be both, in the sense that you will compensate for some time but not necessarily for all the time employees may take. DOL has said in an opinion letter from the Acting Administrator that “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.”
All in all, 20 states and many corporations require that employees get time off work to eat a meal. And that doesn’t include California, which has some of the nation’s most generous employee policies: In that state, workers must be given a 30-minute break after 5 hours of work.
“What if I don‘t want a break?” As it turns out, uncompensated meal breaks are a frequent basis for class action lawsuits. Tens of thousands of suits have been filed in the last decade under either the FLSA or one or another state law. Sometimes, conscientious employees deliberately skip the break in order to catch up on their work.
But more often, plaintiffs say, an employer prevents them from taking the break. It is automatically deducted from their clocked-in hours by the employer‘s timekeeping system, when the workers often can‘t take the break. This is a common occurrence in healthcare facilities where patients’ needs are constant and in a variety of other industries where work backs up. Check your timekeeping system.
And, the laws are strict: If a meal break is unpaid, the employee must be able to leave his or her workstation and have that time uninterrupted. The hard and fast rule is that nonexempt employees must be paid for all hours worked. So many times, I enter an office and I catch the receptionist eating at her desk and assisting customers/patients. Not only are the hours compensable but it lacks professionalism.
(Labor, 2010)The Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.
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