One area of business that the federal government has stayed out of is lunch and other breaks.

Companies are left to make their own policies in this area – unless a state or municipal law applies.

So it is critical that companies know the local laws and follow them. You can find a state law by visiting the Department of Labor webpage for your state under “Wage & Hour Law.”

Since salaried and exempt employees do not have a timekeeping requirement, this discussion applies only to hourly and nonexempt employees.

Duration As a general rule, in lieu of more generous state laws, breaks are defined as a period of less than 20 minutes. Lunch/meal breaks are a period of 30 minutes or longer.

Breaks
Companies do not have to provide a break. But if they do, it must be paid as work time even though the employee is not working. Time spent on activities such as restroom visits, getting coffee or smoking a cigarette must be paid. Do not have your employees “clock out” or dock them for these breaks. Taking excessive smoking breaks is a common problem. This is to be handled with corrective action, not by docking the employee’s pay.

Lunch
Lunch periods are handled very differently than breaks. Companies may choose to designate a lunch period as “paid” or “unpaid” time.

• Companies choosing to pay for lunch periods usually do so to restrict the employee from leaving the premises. For example, so that they are there to handle a mechanical emergency, to ensure that someone answers the phone, or to assist customers. Unpaid lunch periods are the norm and are legal, assuming that the employee does not work and is free to leave the workplace.
• Employees on unpaid lunch should clock out and in to allow for proper timekeeping and to document that they are not on any kind of company business during their lunch.
• Most companies require that employees leave their desk or work area for lunch. This ensures that employees on unpaid lunch are removed from doing work. By just picking up an incoming phone call, an employee can start up the clock and therefore must be paid for this time. Companies started building formal lunchrooms for employees in the 1940s as a tool to get employees away from their work areas for lunch and to avoid the risk of claims for unpaid work during lunch periods.

Wage and hour violations, including those for breaks or lunch, are extremely problematic and can often result in huge fines and back-wage payments to both current and ex-employees.

These payments must be made quickly after the complaint is finalized – often within a few weeks. It is easy for either current or ex-employees to file a complaint with the Department of Labor Wage & Hour Division claiming not to have been paid for the time they worked during lunch.

Employees cannot sign away their right to be paid for time worked with an agreement. And if an employee works during an unpaid lunch without authorization, the company must still pay the employee. Corrective action is the only recourse available.

Running a tight ship is an HR “best practice” for breaks and lunch.