Most people have heard the phrase “there’s no such thing as a free lunch,” but the recent rash of cases across the country involving litigation over meal breaks seems to prove that point in a way that is probably more direct than anyone who has ever uttered the phrase ever intended. In Washington for example, hotel workers filed suit against their former employer because the hotel had an alleged practice of deducting 30 minutes from their time cards each day for lunch breaks, regardless of whether they actually took those breaks or not. In Texas, a registered nurse initiated an action against the hospital that formerly employed her over similar automatic deductions for lunch breaks which she alleged were often interrupted by uncompensated work or not taken at all due to work. In California, a series of cases have emerged that have served to clarify that state’s laws with regards to meal breaks and crystallize the issue as one that has the potential to affect an employer’s bottom line even more than it affects employee waist lines—a 90 million dollar verdict against your company, as was the case in Augustus v. American Commercial Security Services, has the tendency to make people perk up and evaluate their policies. Despite the recent uptick in nationally publicized litigation in this area, there seems to be some confusion amongst both employers and employees over what their respective rights are. Hopefully, this article will provide some clarity as to the question of what the law is in Virginia and how employers can stay on the right side of it and, more importantly, out of potentially costly litigation.

What is the Law? We all know that Virginia is for lovers, but that doesn’t mean employers have a legal obligation to provide their employees with an opportunity to enjoy lunch with their significant other, or by themselves. The federal wage and hour law, the Fair Labor Standards Act or FLSA, does not place an affirmative requirement on employers to provide employees with meal or rest breaks. As a result, the issue of whether or not to require meal and rest breaks is one that is left up to the states themselves to resolve. Virginia, like the majority of states, does not require that employers provide their adult employees with breaks—Virginia does, however, require an employer to give a minor employee, defined as anyone under the age of 16, a 30 minute lunch break after working five consecutive hours. Although meal or rest breaks aren’t required, employers often provide them, and in providing them can potentially run afoul of the law by equating a lack of federal or state laws requiring breaks with a lack of federal or state laws regulating breaks. Federal law provides that employers that do offer “non-exempt” employees (those entitled to overtime) what are termed as “short breaks” (usually lasting about 5 to 20 minutes), must compensate those employees for their time because this is considered to be “work time.” The law does, however, provide that “bona fide meal periods,” usually lasting 30 minutes or more, are not “work time,” and are thus not compensable. What trips up many employers is what happens during these “bona fide meal periods.” This is because the break must not only fall within the time requirement stated above, but also allow the employee to be completely relieved from the duties of their employment for the entire break period. This means that when an employee takes a “working lunch” and sits at his or her desk inputting data or answering the phone despite a company mandated 30 minute lunch period, their time should be compensated or the company is in violation of the law. Additionally, the company can only deduct for time actually spent on the break. This means that companies must strive to conform the time deducted for breaks with the actual time spent on break, not the amount of time that was actually scheduled for a break period; for example, automatic deductions taken by the payroll system like the ones mentioned in the introduction can cause problems if the employee doesn’t actually take the break or if the employee takes a break shorter than the one that was scheduled and the time card doesn’t reflect the difference.

How to Avoid the Minefield. As you’ve seen, it can be difficult to comply with the law, but there are some things an employer can do to reduce their exposure to potential litigation with regards to this issue. The following is non-exclusive list of best practices to make sure that your company is compliant with the law:

  • Develop a coherent, consistent policy regarding breaks and stick to it.
  • Discuss the policy with supervisors and managers so that they can avoid the pitfalls mentioned above and effectively police the workplace.
  • Be especially sure to warn supervisors and managers against discouraging or impeding workers from taking breaks, or pressuring employees to perform their duties in ways that omit breaks.
  • Make sure that employees themselves understand their responsibility to discontinue any projects or other duties during their breaks.

If you have a system that automatically deducts a set amount of time from employee time cards for breaks, evaluate that system to make sure that it accurately reflects workplace behavior and allows your company to remain compliant with the law.

If your business does not already have a policy in place regarding meal and rest breaks, you need one.