Many employee lawsuits include a claim for missed meal break penalties. The meal break requirements are strict, and employers must adhere to the requirements. Employers who do not maintain, publish and actively communicate compliant meal break policies can face significant penalties and attorneys’ fees. In this article we discuss the meal period requirements, meal period waivers and on-duty meal agreements.
Meal Period Requirements
Usually, an employer may not require a non-exempt employee to work more than five hours per day without a 30-minute unpaid, duty-free meal break, where the employee may do what they want, included leave the premises. Meal breaks can be longer than 30 minutes; it is at the employer’s discretion. The meal break should begin within 4 hours and 59 minutes into the employee’s shift. If the employee works less than 5 hours, then the employer does not have to provide the meal period.
If the employee works more than 5 hours, but less than 6 hours, the employee can waive the meal period. Waiving the meal period is the employee’s choice, and employers should never encourage employees to waive the meal period. Some employers require employees to waive the meal period in writing.
Employers do not have to force employees to take meal breaks, but if the employee works more than 6 hours, the opportunity for an employee to take a meal break should be made abundantly clear and encouraged. A compliant meal break policy is very important. Employers should also sometimes remind employees of their right to take meal breaks, and ensure supervisors encourage employee breaks.
If an employee works more than 10 hours in a day, employers must provide a second meal break of 30 minutes or more (note that if an employee already took their first 30-minute meal break, their 10th hour of work would start 10.5 hours into the shift because the employee took a half-hour lunch break). The employer should do nothing which can be construed as preventing or discouraging the employee from taking meal breaks.
Employers and employees should not “round” the meal period. The meal period should be a full 30-minute period.
If an employee is not afforded the opportunity to take a meal break, employees are owed “premium pay,” equal to one hour of pay at the employee’s regular rate of compensation, for each day that the meal break was not provided. The additional pay for any missed breaks must be included in the next paycheck for the employee.
The maximum penalty for missed meal is one hour of pay per day, no matter how many meal breaks were missed in the day. Employees who are not afforded the opportunity to take required “rest breaks” have the right to a rest break penalty as well.
If a meal break was provided, but the employee voluntarily performed work during the meal period, the employee must be paid for the time spent working, but premium pay is not owed. Employers should be cautious of these situations since an employee could later claim the employer interrupted the meal period. Anytime an employee does not take and record the full 30-minute lunch break should be documented, identifying why the break was interrupted or not taken. Company policies should direct employees to report to management, preferably in writing, if they cannot take their meal breaks. If missed meal periods are a frequent issue, it is worth considering for the employer to regularly audit timekeeping records.
Employers cannot hold required meetings or employee training during meal breaks. Even if the employer provides food during the training, it is still considered working time that an employee must be paid for. If a meeting must be held during the normal lunch break, the employer should provide an off-duty meal break before the meeting.
The one hour of pay owed in the event of a missed meal break is considered a wage, not a penalty. The hour of premium pay serves as both an incentive for employers to follow the law and as a wage that adequately compensates employees. Failure to pay the meal period premium could result in more penalties for failing to provide correct pay stubs and failing to pay all wages owed at the end of employment.
Employers should have clear timekeeping records and policies in place requiring a 30-minute meal break before the 5th hour of work. Employees should identify the start and end times of meal periods.
Differences Between a Meal Period Waiver and an On-Duty Meal Agreement
There are situations where, due to the nature of the employment, an employee cannot be relieved of all duties for their lunch break. Security guards are a prime example of this, because sometimes, they cannot leave their post, and it is not practical or possible to have relief staff. Often, the nature of a security guard’s job prevents them from being relieved of all duties and an on-duty meal agreement is valid. In those instances, the employer and the employee can agree to an on-duty meal agreement, in which case there is no penalty when the employee has a working lunch.
The on-duty meal agreement must be in writing, and it can be revoked at any time by the employer. The on-duty meal agreement is only allowed when the nature of the work prevents an employee from being relieved of all duty. The on-duty meal agreement must explicitly state the employee can revoke the agreement.
On-duty meal agreements must be voluntary. Employers cannot require employees to work an on-duty meal period. Employees may revoke the agreement at any time. If the employee revokes the agreement, the employer must provide the meal period or pay a penalty. Sometimes, the employer may need to schedule the employee for a shift that doesn’t require a meal period (i.e. less than 5 hours).
There must be a reason the employee cannot be relieved of duty because of the nature of the employment. If the employer just doesn’t want to hire enough workers to allow a meal period, or the employer wants the employee to get work done during the lunch period, then an on-duty meal agreement is not valid.
An on-duty meal agreement is not a meal period waiver. A meal period waiver is where an employee entitled to a lunch period voluntarily waives a meal period. An on-duty meal agreement is an agreement between the employer and employee that the employee will work during the meal period because the nature of the employment prevents the employee from being relieved of all duties.
If you have a valid on-duty meal agreement, you need not provide meal periods, despite the number of hours worked. With an on-duty meal agreement, there are no meal periods to “waive,” because they are all paid and “on-duty.” If there is no on-duty meal agreement (because the employee does not want to sign the agreement, because they revoke the agreement, or because the nature of the work does not actually prevent the employee from being relieved of all duty), then the employer must afford the employee the opportunity take all required meal periods. If the employer does not do this, then they must pay the penalty.
If you have questions about meal breaks in your place of employment, contact the Nuddleman Law Firm. Robert Nuddleman has been helping employees and employers with their employment law issues for 30 years. We help employers understand and follow the law, and we help employee’s whose rights have been violated.
Article written by Sophia Fraher and edited by Robert Nuddleman
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