Published on April 15th, 2018 | by Dack Varss0
The Law on Meal and Rest Breaks in the United States
Many employers provide their workers with meal and rest periods to give them recovery time during their shifts. In general, federal law does not require employers to provide such breaks. But when they do, there are certain rules that must be followed.
Of course, it’s important to look at whether your particular state has laws that might be more favorable to employees than federal law. Many states have laws that require employees to be given more rest and meal breaks than federal law requires.
California, for example, provides for mandatory meal and rest breaks far in excess of those required by federal law. Check out this article on California break laws to learn more about the law in that state.
Other states, like Kansas (where I practice), follow federal law and do not provide for any legally-required breaks. Read this article for more on Kansas break laws.
The rest of this article aims to provide an overview of the law on meal and rest breaks under federal law. While federal and state laws are often similar, employers should be aware of the fact that they must comply with the laws, state or federal, that provide greater benefits and protections to their employees.129 USC § 218(a); Mitchell v. JCG Industries, Inc. 745 F3d 837, 838 (7th Circuit 2014) (“federal law does not preempt the state law if the latter is more generous to employees”).
What Rest Periods Are
Rest periods, sometimes referred to as “coffee breaks”, are generally paid time.229 CFR § 785.18. The full text of § 785.18 reads: “§ 785.18 Rest. Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.”
In Mitchell v. Greinetz, 235 F.2d 621 (10th Cir. 1956)3Cited and discussed recently in Secretary United States Department of Labor v. American Future Systems, Inc. [Court of Appeals, 3rd Circuit, 2017, ftns. 55-60]. the employer and employees had agreed that employees would take two 15-minute breaks per day, and that the breaks would be unpaid. Nevertheless, suit was brought by the Secretary of Labor alleging violation of minimum wage requirements.
While the employees were required to leave their work places (at weaving machines) during the breaks, they in fact almost always remained on the employer’s premises in a restroom where they could make coffee and tea.
The district court found in favor of the employer; the Court of Appeals reversed. It noted that no hard or fast rule could be laid down governing such cases, that 29 CFR § 785.18 did not establish a “bright line” rule with respect to how much time a “rest period” lasted, and that the fact that all parties had agreed to the arrangement was not decisive.4Mitchell v. Greinetz, 235 F.2d 621, 623-625.
What was decisive was that “the time involved here under the conditions of employment is such that it cannot be effectively used by the employees for purposes not connected with their employment.”5Mitchell v. Greinetz, 235 F.2d 621, 625.
Thus, while each arrangement between employer and employee must be judged on its own merits, the general rule is that if the rest period is so short that employees cannot attend to their own business during the period, it must be considered work time and must be paid.
What Meal Breaks Are
Contrary to rest periods, as a general rule meal breaks are not paid time. To be considered a “bona fide” meal period, the employee must be completely relieved from duty.629 CFR 785.19. A number of courts have addressed the “completely relieved from duty” issue and, as is discussed near bottom, the law has evolved to a “predominantly for the benefit of the employer” test rather than the statutory language “completely relieved from duty” test.
Generally No Substantial Duties Are Permitted
In Hill v. United States, 751 F.2d 810 (6th Cir. 1984) The Court of Appeals addressed the issue of what constituted “substantial duties”, and whether de minimis interference in plaintiff’s meal break would render the break compensable.
The plaintiff in Hill was a letter carrier employed by the U.S. Postal Service. He argued that he had certain duties during his 30-minute lunch break that included remaining responsible and accountable for the security of accountable items and mail as well as for the undelivered mail, and that on occasion he had to provide information to members of the public or accept first class mail from them.7Hill v. United States, 751 F.2d 810, 811-812 (6th Cir. 1984).
The district court held that the restrictions on appellant’s time during his lunch period did not interfere with the free disposition of his lunch period, and granted defendant’s motion for summary judgment, denied plaintiff’s.8Hill v. United States, 751 F.2d 810, 812 (6th Cir. 1984).
The Court of Appeals affirmed and held:
“We approve the district court’s conclusion that appellant’s meal period is not compensable because he was not required to perform any activities that could be characterized as substantial duties. Our holding is based on the need for a flexible and realistic standard for compensability and on the particular circumstances of this case.?.?.?.?As long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit, the employee is relieved of duty and is not entitled to compensation under the FLSA (Fair Labor Standards Act).9Hill v. United States, 751 F.2d 810, 814 (6th Cir. 1984).
Thus, Hill established that for a meal break to be compensable, the employee must be responsible for the performance of “substantial duties”. If there are no substantial duties, and if the time is not spent predominantly for the employer’s benefit, there is no entitlement to compensation.
That plaintiff in Hill was still responsible during his break for certain items (most of which were kept locked in his truck, which he did not have to keep within view while he ate lunch) was not considered a substantial duty, nor was an apparently rare request for service by a member of the public.10See Abadeer v. Tyson Foods, Inc., 14 F.Supp.3d 1062 (Dist. Ct., TN, 2014) (discussion of Hill and other cases).
On the other side of the coin, in some cases meal breaks have been held compensable. In F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493 (6th Cir. 1952), the plaintiffs worked for a mill that ran 24 hours a day, six days a week.
Evidence introduced at trial demonstrated that “engineers were not expected to leave their engines unattended at any time during their shifts, because the engines had to be constantly observed to assure safe and efficient operation”; that millers, oilers, flour and feed packers “were required to stand by on the alert” due to “frequent chokeups in the operation of the machinery”; and that all workers were expected “to eat lunches in the immediate vicinity of their work.”11F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496 (6th Cir. 1952)
The Court of Appeals noted with approval comments by the trial judge: “A man who has to oil machinery with a sandwich in his hand is not having a free lunch period” and “a man who has to have his eyes glued upon the watching of grain coming down from floors above and be careful that there is no stoppage during the entire eight hours of his shift, including his lunch period, does not have a free lunch period.”12F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496 (6th Cir. 1952)
Thus, the Court of Appeals found “that the employees did not have a free lunch period during which they could serve their own interest and do as they pleased, but that their duties and responsibilities to their employer were continued during the lunch periods.”13F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496 (6th Cir. 1952)
The duties that the plaintiffs had during their “meal breaks” were, in contrast to the “duties” of the plaintiff in Hill, supra, were not de minimis, rather were substantial and clearly interfered with plaintiffs’ ability to use the break time for their own purposes, and held that they were entitled to overtime pay.
Predominant Benefit versus Completely Relieved
Two tests have been used over time to determine whether particular meal breaks were breaks or not: the “completely relieved from duty” test and the “predominantly for the benefit of the employer” test.14O’Hara v. Menino, 253 F. Supp. 2d 147, 155-156 (D.Mass. 2003).
As the O’Hara court observed, the Supreme Court had certainly adopted the predominant benefit test by 1984, as it was used in Hill. Under the predominant benefit test, “the courts focus on various factors, such as the limitations and restrictions placed upon the employees, the extent to which those restrictions benefit the employer, the duties for which the employee is held responsible during the meal period, and the frequency in which meal periods are interrupted.”15O’Hara v. Menino, 253 F. Supp. 2d 147, 156 (D.Mass. 2003).
In O’Hara certain police officers in Boston sued for overtime based on a claim that during their lunch breaks they were required to be available for emergency calls, to maintain radio contact, and similar duties.
The district court applied the “predominantly for the benefit of the employer” test and rejected the officers claims, finding that “the restrictions imposed do not prevent them from comfortably and adequately passing the mealtime”16O’Hara v. Menino, 253 F. Supp. 2d 147, 157 (D.Mass. 2003).
Briefly, what to be looking for when determining whether breaks are breaks: with respect to rest periods, the most important factor is whether the circumstances of the break, including the duration and location, permit the employees to attend to their own business. If the break is so short, or if the employees are so confined with respect to where they may go, that the time cannot possibly be considered their own, then the break must be paid.
With respect to meal breaks, the “predominantly for the benefit of the employer” test should be applied. This test focuses on factors such as the limitations and restrictions placed upon the employees, the extent to which those restrictions benefit the employer, the duties for which the employee is held responsible during the meal period, and the frequency in which meal periods are interrupted.
In short, any restrictions must not interfere with the free disposition of the lunch period, and, at least for the most part, the employees must have a free lunch period during which they can serve their own interest and do as they please.