Laws surrounding non-work time for your nonexempt (hourly) workforce, such as breaks and meals, can be confusing, and even counterintuitive. This post focuses on typical instances of nonwork time, such as meal, rest, and lactation breaks, and how this time impacts wage and hour issues.
Breaks and Meals.
Under federal and Pennsylvania laws[1], neither meal breaks nor rest breaks are required to be provided to employees, unless employment is governed by a collective bargaining agreement or contract that states otherwise. Short breaks (between 5 and 20 minutes), if offered, are considered working hours and employees must be compensated for the time. Employers who offer meal breaks may choose not to pay for meal breaks that last 30 minutes or longer (20 minutes or longer in PA).
Lactation Breaks.
Federal law requires employers to provide reasonable break times for an employee to express breast milk for her nursing child for up to one year after the child’s birth. If an employee is completely relieved of duty, breaks do not need to be paid time. However, in instances where employers provide paid breaks to nonlactating employees, an employee who uses a break for lactation must be compensated in the same way that other employees are compensated for break time.
Start and Stop Times.
When a shift starts and ends is an often-missed area of nonwork time compliance. Tracking time is not just about “clocking in” when you arrive. It is about strict compliance to tracking time when you are scheduled to work and are working, and reporting instances when you are working during nonscheduled, nonwork time.
Common Pitfalls.
There are several wage and hour pitfalls that arise from the mismanagement of nonwork time.
- Employees must be provided with time away from work during an unpaid meal break, or they must be paid. Employees must NOT work during periods of unpaid time, and employer direction must be clear. Employees cannot volunteer and employers cannot turn a blind eye. For example, beware of the employee who eats at his desk. If he is catching up on work, going through emails, or answering calls in between bites of a sandwich–this is paid time. And take, for instance, the employee whose spouse picks her up after work, but he ends work at a later time. So, your dutiful employee uses this extra 45 minutes before her pickup each evening to “get caught up.” This time is compensable time, and if you are not tracking it, you have a wage and overtime compliance issue that can add up to a significant dollar value. For example, if an employee is working over for 45 minutes, 5 days each week, she has a potential claim for 3.75 hours of overtime each week, based on a 40-hour workweek.
- Employees must, according to the law, “clock” (using whatever timekeeping practices that are in place) in and out of work for meal periods and start and stop times so that unpaid and paid times are clearly documented.
- Policies need to prohibit employees from working during times that are specifically carved out as nonwork times. This includes mealtimes, but also includes coming to work earlier than scheduled, or staying late. Policies need to be drafted to require compliant timekeeping procedures. Supervisors need to be educated to spot these issues throughout the workweek when observing employee practices.
- Caution is warranted when deciding to deduct from wages for overextending breaks or coming in early. Best practices are to implement progressive discipline and pay the time. To deduct time, you must have very clear policies and good enforcement.
Break and Meal Summary
| Rest Break | Meal Break | Lactation Break |
Are not required under federal or Pennsylvania law.
| Are not required under federal or Pennsylvania law.
| Are required under Federal law to provide lactation breaks for employees to pump breastmilk for up to one year after the child’s birth.
|
| Are usually 5 to 20 minutes long.
| Can be 30 minutes or more and must be tracked through timekeeping.
| Breaks should be reasonable in terms of duration and number. |
| Considered paid time.
| Not required to be paid as hours worked
| Must be paid as hours worked if the employee is working during the lactation break or the employee uses a regular paid break. |
Must be completely relieved from duty for the purpose of eating regular meals.
| If you intend not to pay for lactation breaks, the employee must be relieved of all duties and not otherwise entitled to paid break time. |
Note on Multistate Employers.
While this article addresses federal and Pennsylvania law, multistate employers should be aware that other states, such as New York and California, have more stringent requirements for rest and meal breaks. Employers operating in multiple states should always refer to the applicable state law on meal and rest breaks to ensure compliance.
[1] Pennsylvania requires break times for Child Workers. See 43 P.S. Section 40.3(a);
For more information on this and other employment compliance issues, please contact Neva Stotler or Anna Truckley.
