In nearly half of the states, rest breaks, meal periods or both are required by statute. Illinois, for example, requires that all employers, with some limited exceptions, permit employees who are scheduled to work for 7½ or more continuous hours to take a meal-period of at least 20 minutes no later than 5 hours after the start of the employees' workday. California employers must provide, with certain exceptions, a rest break of at least 10 minutes for every 4 hours worked and a meal period of at least 30 minutes after every 5 hours worked. For productivity, safety, morale or other reasons, virtually all employers provide break periods to employees even if not required by law. Whether mandated or not, rest breaks and meal periods are increasingly a focus of class action litigation in which current and former non-exempt employees seek compensation for break periods not provided, or for break periods worked but not paid for, or even for breaks periods that, when added to the employee's other hours worked on any day or in any given week, convert hours worked at a regular rate of pay into overtime hours. Employers should address the unique issues that break and meal periods raise to protect themselves from exposure.

Non-Exempt Employees Who Work Through Their Breaks

For safety reasons, some employers require employees to take rest breaks and/or meal breaks. In our experience, many employers permit employees to work through their breaks if the employee so chooses. States that mandate breaks typically allow employers that same kind of flexibility in managing break periods: While employers must permit employees to take a break, they need not require that the employees actually do so. Employers are allowed to give employees the option of working through their breaks, as long as the employers do not require or pressure them to do so. A notable possible exception is California, where one appellate court recently indicated that employers have an affirmative duty to ensure that employees actually take prescribed meal periods. The California Supreme Court has agreed to decide that issue.

Non-exempt employees who work through their breaks are entitled to compensation for such time. State law typically will dictate that non-exempt employees must receive their regular rate of pay for a break period actually worked. As to federal law, the U.S. Department of Labor Employment Standards Administration stated as follows in a May 15, 2008 Opinion Letter:

"Work not requested but suffered or permitted is work time." 20 C.F. R. § 785.11. Thus, the employer must compensate the employee for all hours worked including the time worked during the missed meal period. . . . Federal law only mandates that "the employee receive[] at least the minimum wage for all the hours worked (including the time worked because of a missed meal period).

That Opinion Letter also went on to note that break and meal periods actually worked must be accounted for in determining if and when a non-exempt employee reaches the 40-hour threshold in any week, and thereby becomes entitled to overtime pay:

The time worked because of a missed meal period is hours worked for purposes of determining overtime compensation. See Wage and Hour Opinion Letter FLSA2007-INA (May 14, 2007). The employee must be paid for all hours worked at the agreed rate plus the overtime premium (one half the regular rate) for all hours worked over 40 in a workweek. Before an employee can be said to be paid statutory overtime compensation due, the employee must first be paid all straight time wages due for all hours worked under any express or implied contract or under an applicable statute.

For whatever the purpose—to assure an employee is compensated for all time actually worked, to meet minimum wage requirements for each employee, or to pay overtime when the law triggers it, employers must make sure they accurately track hours worked during rest breaks or meal periods. This can be very difficult for employers, particulary when employers allow employees to decide to take breaks at the last moment, without first obtaining supervisory approval.

The Costs Of Failing To Monitor When Employees Actually Work Through Breaks Can Be Exorbitant

Some employers have already experienced the costs that can arise from the failure to comply with state laws mandating rest breaks and/or meal periods. Well-intentioned employers who do comply with such state laws have also experienced the costs of failing to monitor and document when non-exempt employees have voluntarily worked through their breaks.

In Brown v. Family Dollar Stores of Indiana, 534 F.3d 593 (7th Cir. 2008), the United States Court of Appeals for the Seventh Circuit recently reminded employers of the importance of maintaining accurate records of hours worked. The plaintiff there claimed that her employer had not paid her overtime wages. The district court dismissed the case because the plaintiff did not have "definite and certain evidence" of the hours she actually had worked. The Seventh Circuit, relying on the United States Supreme Court decision Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), reinstated plaintiff's case, holding that plaintiff's general testimony approximating the hours she worked was sufficient to support an award of damages against the employer:

Anderson recognized that where an employer failed to keep the proper and accurate records required by the FLSA, the employer rather than the employee should bear the consequences of that failure. To place the burden on the employee of proving damages with specificity would defeat the purpose of the FLSA where the employer's own actions in keeping inadqueate or inaccurate records had made the best evidence of such damages unavailable. The Court accordingly held that "[i]n such a situation, . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." The burden then would shift to the employer to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to meet that burden, a court may award damages even though they are approximates. (Citations omitted.)

In short, a plaintiff can obtain a large damages award based on mere approximations and somewhat vague recollections—if the employer fails to maintain accurate records to refute the plaintiff's inflated speculation of actual hours worked.

Basic Steps Employers Can Take To Minimize Risk

Employers are well-advised to review the rest break and meal period policies and practices across all of their operations. The following steps can help employers avoid litigation or, if litigation occurs, prevail sooner rather than later:

  • Understand the law in each location where your company's employees work, including whether employers are forbidden from knowingly allowing employees to work through their breaks.
  • Establish and disseminate a written policy that clearly sets forth break and meal periods applicable to employees. The policy should clarify whether employees are permitted to reschedule or even forego their breaks and what specific steps they must take if they so elect.
  • Train supervisors in the policy and establish procedures for supervisors to monitor the use of break and meal periods and employees' compliance with the steps required to reschedule or work through a break. The procedures should accurately document rest breaks and meal periods actually worked and provide a mechanism for transmitting that data to the appropriate payroll and/or human resources personnel.
  • Establish procedures that detect instances in which supervisors have wrongly forced or discouraged employees, expressly or otherwise, to work during their rest break or meal period. As with any effective internal complaint procedure, employees should have more than one avenue through which they can communicate such supervisor abuses.
  • Regularly audit the wage-hour policies and practices throughout the company to assure not only compliance, but also the retention of understandable and complete data to prove each employee's actual hours worked, including work time during the employee's established break periods.