Q: Are there any exceptions to meal and rest break requirements? Can we allow employees to waive their meal breaks if they work six hours instead of eight?
Federal law doesn’t require employers to provide employees with meal and rest breaks. Requirements for such breaks are often addressed under state law. As a result, break requirements vary from state to state and often depend on employee age, number of hours worked, and the nature of the work environment.
If an employer does offer breaks, however, the federal Fair Labor Standards Act (FLSA) considers short breaks (usually five to 20 minutes) to be compensable work hours for calculating the sum of hours worked during the workweek and determining overtime. Meal period breaks (usually at least 30 minutes) serve a different purpose than shorter breaks. If employers offer such breaks, they aren’t compensable under federal law as long as an employee is relieved of all work duties during the break.
Because federal law doesn’t mandate meal or rest breaks, there are no federal penalties for not providing breaks. Additionally, federal law doesn’t address waiving meal breaks. State law requirements regarding rest or meal breaks will prevail over the FLSA’s silence on the topic. If an employee is subject to both the FLSA and state labor laws, they are entitled to the most beneficial provisions of each law.
Break requirements vary between states. Some states don’t require breaks. States that do require breaks may specify what type of break is required, what exceptions apply, and what must happen before breaks can be waived.
For example, in West Virginia, certain employers must provide a paid 20-minute break for employees who work six or more hours unless the employer offers a meal or rest break of 30 or more minutes, which can be unpaid. The time when meal breaks are taken is reasonably designated by the employer. Note, however, West Virginia does provide that minors under the age of 16 who work more than five consecutive hours must be provided with a 30-minute meal break. West Virginia law doesn’t explicitly provide for waivers or exceptions to its meal break requirement, so it should be presumed there’s no waiver permitted.
In another example, Tennessee provides that each employee shall have a 30-minute meal break when scheduled to work six consecutive hours, unless the nature of the work environment provides ample opportunities for the employee to take an appropriate meal break. Tennessee requires that an employee must submit a waiver request to the employer in writing to waive the meal breaks. For the waiver to be effective, the employee must submit the request knowingly and voluntarily, and the employer and employee must both consent to the waiver. Tennessee provides that civil penalties can be assessed if an employer violates the state’s meal and rest break requirements.
Bottom Line
There’s no federal mandate for an employer to provide meal and rest breaks for their employees. However, each state has their own requirements regarding meal and rest breaks. You must understand the requirements of the states in which you are located when making meal and rest break determinations.
Margaret Lohmann is an attorney with Steptoe & Johnson, PLLC in Bridgeport, West Virginia, and can be reached at 304-933-8344 or maggie.lohmann@steptoe-johnson.com.