Federal Break Laws

Federal break laws are something very important for both employers and employees. As an employer, you will be required to follow a variety of federal and state regulations regarding breaks. Employees are entitled to certain rights, which vary by state, regarding meal and rest breaks as well.

Federal Law on Meals and Rest Breaks for Employees

In many but not all workplaces, employees get some kind of break or rest, sometimes paid or not. Federal law, specifically the Fair Labor Standards Act, does not mandate that employees get breaks. However, in some states, there are state laws requiring such.

Unless the state requires it, employees don’t need to be paid while they are on break. Generally, in most states breaks that are 20 minutes or more are not paid for, while those that are less are required to be paid-breaks. For lunch breaks, for example, which often last 30 minutes or more, the employer often won’t need to pay the employees while they are on this break, but the employees also have free time during it.

The FLSA is more about making sure employees are paid for the work they do. The FLSA will require employees to pay people for their work, even if the work is performed during a break. For example, if an employee is working during their unpaid lunch break then they still might need to be paid for it. Employers might run into overtime problems if they aren’t careful.

Many workplaces can create certain policies to lower this problem. By making sure employees are not working during their breaks, they will avoid FLSA wage liability.

Many states, however, require certain breaks, with stiff penalties for employers that don’t provide them. As an employer, you need to be aware of these break requirements in order to avoid liability and disputes.

The two biggest pieces of employment law to be familiar with are the FLSA and the FMLA, which stands for the Family Medical Leave Act. Both of these laws will set the standards you need to follow regarding a variety of labor requirements, such as vacation, breaks, flex work, and taking time off for being sick.

Federal regulations, specifically Section 785.18 of 29 CFR, states that short breaks need to be paid for by the employer (if the break is between five and 20 minutes), while unpaid meal breaks need to be at least 30 minutes.

Many employees end up not even taking meal breaks, even in those states that require meal breaks.

State Laws on Meal and Rest Breaks

Roughly one-half of states demand that employees are given a meal break. The law generally is that when an employee has worked between five and six hours straight, they will then be permitted to get a 30-minute meal break. Many states will not allow this time to be designated at the start or finish of a work period.

You can look up a state’s meal regulations through the Department of Labor, which keeps an online listing.

The employee is not required to be compensated for their meal break when they are doing absolutely no work during that time. However, if they are doing some work during that time, they will need to be paid under the law.

Remember that these regulations vary heavily state-by-state. Many states have no demands for paying for breaks, while others have significant requirements. For example, California demands breaks for meals. If there are absences in state law regarding certain questions, then the federal regulations are the default rule.

If you violate meal and rest break laws, the penalties from the government can be very swift and punishing. The California court case of Murphy v. Kenneth in 2007 demonstrates this. The case was regarding a situation where an employee, Murphy, said that his employer, Cole, violated employee laws due to stating he was an exempt employee from those laws. The case eventually centered around a controversy regarding how meal break payments are classified. The Supreme Court of California eventually decided that meal break compensation is a premium on the wage rather than a penalty, and therefore subject to a three-year statute of limitations rather than one-year.

Many states have a variation of mandatory meal break laws. These include large states such as California, New York, and Illinois, as well as small states such as North Dakota, West Virginia, Nevada, and Kentucky. You should check with your state to see what kind of break regulations your state specifically requires.

Of these 22 states, roughly 19 of them demand a meal or rest break for non-minors. 7 of them demand a rest break on top of a meal break for non-minors. The specifics of the laws vary by state.

  • Colorado and California: After a five-hour shift, and if the total shift is under six hours, the employee gets a 30-minute break.
  • Delaware and Connecticut: After a 7.5-hour shift, the employee gets a 30-minute break when it is between the shift’s first two hours and last two hours.
  • Illinois: Only hotel attendants get breaks.
  • Kentucky: Between the shift’s third to fifth hour, the employee gets a “reasonable” meal break.
  • Wisconsin and Maine: After working six hours straight, there is a 30-minute break.
  • Massachusetts: When working more than six hours, they get a 30-minute break.
  • Minnesota: When the break is more than eight hours, there is a “reasonable” break.
  • Nebraska: During lunch, there is a 30-minute break away from the work-area.
  • Nevada: When the employee is working eight hours straight, they will be allowed a 30-minute break.
  • New Hampshire: Employees who are working five-hours straight can get a 30-minute break except under certain circumstances.
  • New York: When the shift is more than six hours, then the employee can get a 30-minute break.
  • North Dakota: When working at least five-hours, employees get a 30-minute break.
  • New Mexico and Oregon: Varied 30-minute breaks for employees.
  • Rhode Island: When the shift is six hours, employees get a 20-minute break. When the shift is eight hours, then the employee gets a 30-minute break.
  • Tennessee: When the shift is six hours, employees get a 30-minute break. However, the break cannot be during the initial shift hour.
  • Washington: On a five-hour shift, the employee gets a 30-minute break. However, the break needs to be done after the second hour of the shift and before the fifth hour of the shift.
  • West Virginia: When an employee is working a shift that is at least six hours, they get a 20-minute break.
  • Guam: When working a shift that is in total over six hours, then the employee gets a 30-minute break after five hours of labor unless there is an agreement between the employer and the employee to cancel the meal-break. The kind of work may affect the kind of breaks allowed.
  • Puerto Rico: Employees can take a one-hour break after the third hour of work but before the sixth-hour of work. The employee gets double-pay for any work done during their meal break.

An employer can choose to give work breaks that are lengthier than those the law demands. However, the breaks cannot be shorter than the law’s requirements. If the state or locality lacks employee wage and break laws, then the FLSA prescribes that whatever breaks become part of the contract negotiations between the parties.

For breaks that are taken from the employee’s time management sheet, there must be a method for the employee to designate how much of that break was worked or not.

Only a few states demand states give employees “rest” breaks. In these states, the employee can usually get a paid rest break for around ten or so minutes every four hours.

Some states permit employers to decide whether to give a meal or rest break, or just a restroom break. You can see which states have which demands by going to the Department of Labor’s online listing.

Here are the states which demand that employees are given rest breaks which are paid: California, Colorado, Illinois, Kentucky, Minnesota, Nevada, Oregon, and Washington.

Different Rules Apply to Younger Workers

Many states will usually allow minors to get more frequent breaks, both rest and meals. These rules can often be quite strict. As one example, Delaware demands that 30-minute breaks are given to minors after at least five-hours of labor while adults need to work at least 7.5 hours before getting a similar break.

Many states have these unique rules for non-adults that apply when the person is under 18, while other states apply the rules only when the person is under 15.

You can look at the state’s Department of Labor to see what the state’s specific rules are.

What to Do If You Aren't Getting Your Breaks

You should reach out to your state’s Department of Labor if you are in a state that legally requires certain breaks but either you aren’t allowed to take them, or you are required to work through them without pay.

Employers generally have a lot of powers and rights in deciding the specifics of meal breaks. However, there are the aforementioned requirements on meal breaks, and also employers are sometimes liable for certain things that happen during breaks, even unpaid ones.

If an employer permits around 20 to 30 minutes for a break, then employers avoid certain kinds of liability. They avoid liability for violating labor law requirements. Furthermore, they will avoid liability for paying the employee during that time.

One example of this being set out and enforced is in the case of EMB Contracting Corp. (2008) in New York. The state panel sided with an employer who was being sued over an employee who was hit by a car while returning from their lunch break. Because the employee had the freedom to choose their place to eat lunch and there was sufficient time to do so, the employer was not liable for the car accident as the accident was not a result of the employee’s employment duties and course.

The court in EMB Contracting Corp. especially noted that unless the employee is doing something specifically and directly related to their employment while on their lunch break, then their lunch break is not related enough with their employment for liability to be connected as well.

In contrast, when an employee abuses their lunch break employers will have the right to terminate the employee. Various cases have clearly set that employers have significant leeway in terminating their employees for actions taken during their breaks, even though employees still have certain rights at times.

In the case of Grusendort v. City of Oklahoma City in 1987, a firefighter was fired for smoking during an unpaid meal break. The firefighter had signed a contract previously saying they would not smoke during their initial year on the job. The Court eventually sided with the employer, who was, in this case, a government agency, saying it would defer on a rational basis test to the agency’s decision-making. The firefighter had challenged the termination based on privacy as well as liberty grounds.

Private employers may be restricted in terminating over certain actions, as the court noted in the case that certain privacy interests may protect employees’ actions while on unpaid breaks otherwise.

Generally, however, employees will not be allowed to drink alcohol during their breaks, paid or unpaid, just like during the normal working day.

Employers should make sure to use some kind of system, such as a software that tracks time, to make sure breaks are being properly recorded.

If you need help learning more about the kinds of breaks you need to provide your employees or your break rights as an employee, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.