¶ Intro / Opening
Taking breaks at work can help promote employee efficiency, and typically these breaks must be paid. By contrast, meal periods, if they meet certain requirements, typically do not need to be paid. Many states have laws that require employers to provide meal and break periods, whether employers ultimately provide breaks and meal periods voluntarily. Or because they're required to do so, there may be times when employees misuse this time, such as by taking unauthorized extensions.
This podcast will provide ideas for employers to help prevent and respond to such misuse. Welcome to HRPreneur. I'm Jim Duffy. From Main Street to your Street, the HRPreneur Podcast Is centered around helping small businesses like yours gain the knowledge you need from HR, payroll, and hiring to time taxes, benefits, and insurance. Today we'll talk with our guest Meryl Gutterman. Meryl works as Senior Counsel with ADP, providing guidance on employment laws. Hello there, Meryl.
As always, it's great to have you back on our podcast.
Hi Jim. Thanks for having me back. It's great to be here again.
So, Meryl, I think it would be great if we could start by reviewing
¶ Pay rules for rest periods
the pay rules for rest periods. Would you mind sharing some perspectives for our listeners?
Of course, the general rule is that if you provide a rest break, which is considered any period lasting 20 minutes or less, that the employee is allowed to spend away from work, that break has to be paid. It's the duration of the break. That is really what's considered the sole factor used when determining whether pay is required, not the reason for the break. The time used for that break must also be included when determining whether the employee is entitled to overtime in that work week.
So with that said, it's important to make sure your employees don't clock out for breaks that last 20 minutes or less.
Thank you for that start, Meryl. How about the pay rules for meal periods?
¶ Pay rules for meal periods
Meal periods are treated differently. They're typically unpaid if they meet certain requirements. So specifically for a meal period to be unpaid under federal law, the meal period must be at least 30 minutes without interruption, and the employee must be fully relieved of all their duties for the purposes of eating a regular meal.
If the meal period doesn't meet these requirements, then it has to be paid and the time must be included when figuring out whether the employee is entitled to overtime in that work week. So for example, if you were to require your employee to sit at their desk while they're eating their lunch, in case any calls were to come in and they're not completely relieved of their duties, then they have to be paid for that entire time, even if they don't actually answer any calls.
So Meryl, let's say an employer is required by state law to give
¶ Responding to unauthorized extensions of rest breaks
employees two rest breaks per eight hour shift, and the breaks are supposed to be 15 minutes each. What if one employee routinely takes longer rest breaks, say maybe 20 to 25 minutes without authorization? Does the excess or unauthorized break time have to be counted as hours worked and paid?
Typically when employees take unauthorized extensions of rest breaks, the time must be paid if the break still lasts 20 minutes or less. But federal law permits employers to exclude unauthorized extensions of.
Rest periods from hours worked as long as the employer expressly and clearly tells the employee that the breaks may only last for specified duration such as 20 minutes, and also tells the employee that unauthorized extensions would be in violation of the employer's rules or their policy tells the employee that violations of the employer's policy will be punished.
Meryl, this type of policy for unauthorized extensions can only apply to employees who are non-exempt from overtime. Is that right?
Yes, that's right. This applies to non-exempt employees and that is an important caveat. As you may know, exempt employees have to generally receive their full salary in any work week that they perform. Work deductions from an exempt employee's weekly salary for unauthorized extensions of breaks could jeopardize their exemption status.
¶ Responding to unauthorized extensions of meal periods
So to help prevent unauthorized extension of breaks, can an employer require employees to remain on the employer's premises during rest breaks?
That depends on the state. Forcing an employee to remain on the premises during a rest break could be considered a violation of the state's requirements, so you really need to check your state law. However, employers can discipline employees for unauthorized extensions of rest breaks in accordance with their company policy. And this can sometimes be enough of an incentive for employees to return from breaks on time, regardless of whether they leave the premises.
So Meryl, what about situations in which non-exempt employees take unauthorized extensions of meal periods?
Well, provided the meal period was at least 30 minutes without interruption. And the employee was fully relieved of all duties. Typically, no pay would be required for the entire time that the non-exempt employee was away from work. An employer may also generally discipline employees for unauthorized extensions of meal periods in accordance with their company policy where that's appropriate. So employers should make sure their managers are trained on their company policy.
Those managers are treating employees consistently, including understanding if there's any protected reason for an unauthorized extension.
Meryl can an employer require employees to take their meal periods on company premises to help prevent unauthorized extensions?
Under certain state laws requiring employees to stay on premises may affect whether the meal period must be paid. So again, you should check your state law to make sure that you're complying.
So what if an employer has an exempt employee who took a three hour lunch? Are they still entitled to their full salary for that work week?
Yes. However, the employer may typically discipline employees for unauthorized extensions of meal periods in accordance with their company policy if they have one. An employer should train on their company policy and then make sure again, that their employees are treated consistently, and that includes understanding if there's any protected reason for the unauthorized extension.
Meryl, as always, this is very informative and helpful and this brings us to the end of this episode. Once again, thank you for coming on the show. We enjoyed the discussion and always love having you here. So, as I always do, Meryl, I take down a couple of notes While you are sharing your thoughts, I'm gonna run through them and please just keep me honest, okay? Mm-hmm. So the first, uh, rest breaks of 20 minutes or less must be paid.
Meal periods may be unpaid, provided the meal period was at least 30 minutes without interruption, and the employee was fully relieved of all duties. Generally, when employees take unauthorized extensions of rest breaks, the time must be paid if the period lasts 20 minutes or less. However, federal law may permit employers to exclude unauthorized extensions of rest periods from hours worked as long as the employer expressly and clearly advises non-exempt employees about three things.
The first breaks may only last for a specified duration. Second unauthorized extensions are in violation of the employer's rules or policy, and third violations of the employer's policy will be punished. So just a couple more things here to note, depending upon the state.
Forcing employees to remain on the premises during rest breaks may be considered a violation of state requirements under certain state laws requiring employees to stay on premises may affect whether the meal period must be paid. And my last recap note here is employers are prohibited from reducing and exempt salary for unauthorized extensions of rest breaks and meal periods. The employee may typically be subject to other forms of discipline, so I just recapped a lot. How'd I do?
You captured that all really well. Thank you.
Thank you Meryl. Presented by ADP, HRpreneur focuses on the entrepreneurs and business drivers who are helping shape the growth of their companies and positively impacting the lives of their employees. With each episode, we'll bring the experts to you. We'll answer your questions and help you think beyond today so you can discover more success tomorrow. Thanks also to our listeners for joining us for today's episode. Be well, and hope you'll join us again soon.