Contrary to many popular opinions, the Fair Labor Standards Act (FLSA) does not require meal periods or breaks during the workday. Employees can work 168 continuous hours every work week, provided they are at least paid minimum wage and overtime for hours in excess of 40. However, most employers provide meal periods and breaks during the workday. Both meal periods and breaks are sometimes required under state laws as well. Twenty one states and Puerto Rico all require either meal periods or breaks during the workday, and a total of 35 states requires meal periods and/or breaks for minors. 

According to the Department of Labor’s (DOL) interpretations of the FLSA, meal periods must be bona fide to be excluded from compensable hours. A bona fide meal period is when an employee is completely relieved from duty for the purposes of eating a regular meal. Generally speaking, according to the DOL, a meal period must be a minimum of 30 minutes in length and it must be uninterrupted. 

According to the DOL, on the other hand, break periods of “short duration,” which last from about five minutes until about 20 minutes, are considered compensable time. The origin of these compensable breaks goes all the way back to 1940—two years after the FLSA was enacted. The then-administrator of the Division of Wage and Hour essentially just decreed in a press release that breaks were, in fact, compensable, and according to the DOL, they promote efficiency and are customarily paid as working time. That time between 20 and 30 minutes may or may not be compensable depending on the circumstances, but most employers stick with the tried-and-true rules of a 30-minute minimum for unpaid meal periods and a 20 minute maximum for paid break periods during the workday.

One issue that has caused quite a bit of consternation is the “auto-deduct” timekeeping policies that have become popular with many employers. There are some definite pros to having such an automatic deduction when it relates to meal periods, as employees do not have to remember to clock in and out when they take their meal periods. This also helps in workplaces where employees might take meal periods at differing times, including having staggered lunch schedules during the day. 

This may seem like a great solution, and it may be in a lot of industries, but some are not compatible with an automatic meal deduction. For example, employees working in health care or other customer service-related positions may not be able to predict exactly when a particular task will end so that they can commence their meal period. As a result, employees may be required to work through the meal period or take an abbreviated meal period that is not at least 30 minutes in length. This can lead to “off the clock” work claims, and depending on the nature of the work performed, it could result in the underpayment of overtime. Another instance where auto-deduct policies can run in to trouble is when employees are not supervised directly on a daily basis. If employees are being deployed out into the field, a supervisor is not there to ensure that a meal break is taken—yet the 30-minute automatic deduction may still apply.

A way to deal with this issue is to establish well-documented policies that explain the timekeeping system, the requirements that employees must follow when taking meal periods and breaks, any applicable rules related to the specific state where the employee is working (including the time during the shift when the breaks and meal period must be taken), and a very clear mechanism to allow employees to report any missed meal periods or breaks. Certainly, a nurse in the emergency room cannot walk away from a critical care patient because a meal period is about ready to start, but at the same time, if that same nurse did not get to take the meal period, it should be simple for the nurse to report the missed meal at the end of the day. 

Supervisors also need to be trained not to expect employees to continue to work during their meal periods. The meal period is supposed to be uninterrupted to allow the employee to be disengaged enough from work to consume a meal. From time to time, employees might get asked a question in the breakroom while they are eating or respond to an email on their phone, but the rule should not be that employees are required to eat at their desks in case they are needed on the phone or asked to quickly consume the meal to get back out on the floor. Employers do not have to allow employees to leave the premises, but it would be advisable if the work environment provided an appropriate space to disengage from work and eat a meal. 

The only time employers can really be excused from paying for skipped meal periods is when the employer has not authorized the employee to work through the meal period and the employer is unaware that the employee is working through the meal period. This might be applicable to remote workers, but for the most part, supervisors should know when employees are working and when they are not.

With these simple tips, the tribulation of auto-deduct policies can be avoided. 

Please reach out to Paul Bittner or any other members of the Ice Miller Workplace Solutions Practice Group to ensure that your timekeeping policies, and especially those related to meals and breaks, are compliant.  And you can always call Paul if you want to talk about college football or NHL hockey. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.