Thursday, October 5, 2023

Rest periods v. Meal periods

Do you know the difference between a break period and a meal period during an employee's work day? It's an important distinction because one does not count as working time, while the other does.

Federal law does not require an employer to grant employees rest or meal periods during the work day. (Some states do require them depending on the total number of hours worked; mine, however, does not.)

Federal law does, however, provide for whether meal and rest breaks are counted as "hours worked." This distinction is important. If time is counted as "hours worked," it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.

  • Rest periods, which are considered breaks of 20 minutes or less, are counted as hours worked whether or not the break is paid. Rest breaks are customarily paid; if they must be counted as work hours, they might as well be paid for.
  • A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating."

What does it mean to be "totally relieved of one's work duties?" The 6th Circuit, for example, falls in line with most federal courts in applying the "predominant benefit" test to determine whether an employee's meal period is compensable. Under this test, the employee bears the burden to prove that the normally non-compensable meal period should be compensable because it is spent predominantly for the employer's benefit. The key inquiry is whether the employee engaged in the performance of any substantial duties during the lunch break.

For this reason, it's important to have a policy and process in place to know when your employees are, and are not, working. Employees need to be paid for all time spent "working." If you have a process in place, however, by which employees must notify you of when they are working outside the norm (such as during a lunch break), then you will be able to verify the claim, and pay when you can confirm that work has been performed outside the normal shift boundaries. Absent that policy and documentation, however, you are left in a the unenviable position of having to prove a negative (the employee was not working when he says he was), which is not the position you want to find yourself in defending one of these cases.