It may come as a surprise to know that the US Department of Labor (DOL) does not require employers to offer rest breaks or lunch breaks to employees. However, if offered, the employer must clarify the duration and frequency of break time. In addition, rest breaks are considered paid time, whereas lunch breaks are not.
In this article, we’ll provide best practices for complying with rest and lunch break laws, a sample employee break policy, and describe how employee breaks laws affect you as a small business.
If you choose to offer rest or lunch breaks, there are federal and state laws that employers need to comply with. The easiest way to ensure you’re in compliance is by using payroll software that calculates hours worked based on your employee’s location. We recommend Gusto payroll for small businesses.
Please note that this article is for educational purposes only. Prior to implementing any workplace policy, we urge you to consult an attorney or get an HR review by someone familiar with your state labor laws.
What Are The Laws On Break Time?
Neither the Department of Labor (DOL) nor the Fair Labor Standards Act (FLSA), which is the primary federal law that regulates working conditions, requires employers to offer rest breaks or lunch breaks to employees. However, for businesses that choose to offer rest and lunch breaks to their employees (which we hope you do), the law requires employers to spell out exactly how those breaks times and lunch times work.
In simple terms, here’s a summary of DOL and FLSA regulations:
- Break times, if offered, are to be negotiated between the employer and employees. The law doesn’t require employers to provide a certain amount of rest or meal time.
- Breaks of 5-20 minutes are considered compensable time, meaning you have to keep employees on the clock and pay them for that time.
- Lunch time, if offered, isn’t required to be paid.
- Lunch breaks aren’t counted toward total hours worked, and therefore are not included in overtime calculations.
- Breaks of 20 minutes or less are counted as hours worked and are included in overtime calculations.
The rules around breaks and lunch time should be outlined where it is accessible to all employees, ideally within your employee handbook.
Since there are FLSA rules about how break and lunch times affect overtime calculations, you’ll want to ensure paid breaks and unpaid lunch time are captured correctly in your payroll system. Consider using payroll software to make this easier on you. We recommend Gusto. Learn why in our payroll software buyer’s guide.
In addition to the federal requirements above, many states also have laws about when and how much time is required for employee breaks. More on this next.
State Specific Break Time Laws
The DOL’s Wage and Hour division provides a state by state chart on the minimum required break time for those working at a private employer. Take a look at the map below.
It shows in green those states with state-specific break time laws. However, the states in grey tend to abide by the federal DOL guidelines, leaving the decision on whether to offer breaks up to you, the employer. If you are in a state shown in green below, click the map to learn about break time laws in your state.
State Break Time Laws
To ensure you are compliant with rest and lunch break laws in your state, consider using a payroll provider, which can adjust payroll calculations and deductions based on which state your employee is located in. We recommend Gusto as the best payroll provider for small business.
For example, if you are a private employer in Colorado, you’ll have to provide an unpaid lunch break of at least 30 minutes to any employee who works 5 hours in a row. In Maine, you’d have to offer 30 minutes to any employee who works 6 hours or more in a row. Some states like California have even stricter rules, such as requiring workers who work a 10-hour shift to be provided two lunch breaks.
How Much Break Time Do Other Small Businesses Offer?
We took a quick poll of a dozen small business owners and found that most offer a lunch break of 30-60 minutes, with more than half of those companies allowing workers to choose exactly how long of an unpaid lunch break they need to take within those parameters.
Take a look at some of these average lunch times actually taken by workers to help determine what’s best for your employees:
While 30 minutes seemed to be the most common lunch time taken, 15 minutes seemed to be the most common length of time for a paid rest break based on our own poll. Our research showed that most companies offered two paid 15-minute breaks during a standard 8-hour workday (two of the 12 respondents offered only 10 minute breaks, and another offered 20-minute paid breaks).
Here are comments from some of our respondents:
“AegisFS Associates take one 15 min break each hour. Our company is a financial partner to the US Government and global corporations. Each Associate is bogged down at a computer, and we have researched, surveyed, and brought in engineers to help with the ambiance and deal with stress levels. Their recommendation was to allow a 15 min walk away from your desk break. Some go into the gym and get on a treadmill and walk so as to stretch their legs, change their heart rate, and clear their mind, plus help their eyes.”
— Jim Angleton, President, AEGIS FinServ Corp™
“At ZeroCater we encourage our teams to take a break, a walk, grab coffees as this all contributes to the collaborative environment we strive for. We eat lunch together at 1pm every day. In terms of our break/lunch times, a majority of our team is salaried and therefore there’s no limit on break or lunch times. For hourly employees, we abide by state laws.
— Arram Sabeti, Founder & CEO, ZeroCater
“I don’t limit the amount of time that my employees can use for breaks or for lunch. I trust that the people we’ve hired will complete their responsibilities on time. If they need breaks or time to clear their heads at lunch, that’s not something I’m going to micromanage because doing so erodes trust and breeds resentment.”
— Philip Murphy, Head of Marketing, Garrett Wade
Special Cases When Employers Are Required to Provide Breaks
The FLSA and DOL aren’t the only agencies that can dictate a need for paid breaks or required lunch breaks. For example, pregnant moms are protected by the Pregnancy Discrimination Act, and people with disabilities may be allowed to take breaks as a reasonable accommodation under the Americans with Disabilities Act.
Let’s look at two examples when employers are required to provide breaks:
Example 1: Accomodations for Pregnant and/or Nursing Employees
Since 2010, the FLSA has required employers to provide ‘reasonable break time’ for nursing mothers to express milk for up to one year after their child’s birth. Employers also have to provide a private place (it can’t be a bathroom) for nursing moms to express milk.
If you have a pregnant employee with a pregnancy-related disability or illness, then federal law may require you to allow her to take more frequent bathroom breaks and provide other reasonable accommodations. The same rules apply in terms of breaks under 20 minutes needing to be paid. We cover more on this in our maternity leave article, which provides information on laws that protect pregnant and nursing moms.
Example 2: Accommodations for Employees with Disabilities
The Americans with Disabilities Act requires employers to provide ‘reasonable accommodations’ so that employees with disabilities can perform their work. Break time accommodations may include allowing a worker who recently returned from back surgery to take more frequent ‘sit down’ breaks, allowing a worker on dialysis to take a longer unpaid lunch break two-three times a week for medical appointments, or allowing an employee with narcolepsy to take a paid 20 minute power nap during their workday.
How to Document a Break Time Policy with Free Sample
Your employee handbook is the right place to document your break time and lunch time policy. Once you’ve added your break and lunch time policy to your handbook, spend 10-15 minutes to review the policy with your team. Consider asking them to sign an employee handbook receipt so that you have proof (in case of any future litigation) that employees were provided training and a copy of the handbook or policy.
Your policy should explain 4 simple things to employees:
- How many hours employees must work before they’re eligible for a rest break or lunch.
- Exactly how much time they’ll get for a rest break, and that they’ll get paid for that time.
- Exactly how much time they’ll get for a lunch break, and that lunch breaks aren’t paid time.
- That violations of the policy may be subject to disciplinary action.
Dr. George Taylor also recommends you keep things simple when explaining your break time policy to employees:
“Remember that breaks are generally on-the-clock and meals are off the clock. Do not over complicate your break and meal schedules. Capturing the difference and providing explanations within your company polices goes a long way.”
— Dr. George Taylor III, SPHR,SCP, http://entorgcorp.com
Free Sample Break Time Policy
Note About Break Rooms
According to the Society for Human Resource Management, SHRM, 93% of employers provide a break room or kitchenette where employees can take breaks. In addition 80% of employers provide free coffee, while 17% of employers provide free food and snacks. The remainder typically provide drinks and snacks that employees can purchase, such as from a vending machine. There’s no legal requirement for employers to provide a break room, except as mentioned above, that businesses must provide a private space for nursing mothers.
3 Common Mistakes Employers Make About Break Time
As simple as the break and lunch time laws are, some employers make costly mistakes that may result in lawsuits, labor law violations or fines. Let’s review three examples:
1. Not Adapting to State Requirements
Business owners who have worked in only one state with one set of rules may not realize that the rules vary by state. So even if your main office is in a state with no specific requirements, if you have a business location in another state, you have to abide by that state’s laws as well.
That’s why multi-state employers typically provide the most generous break and lunch time benefits to their employees. If you don’t know the rules for your state, err on the safe side by providing at least 15 minute paid breaks and at least a 30 minute lunch until you have a chance to view the state chart above or talk to your payroll adviser. Our policy sample is written with comprehensive guidelines to reduce your risk of violating a state law.
2. Not Documenting your Break Policy
Many new and smaller business employers take a laissez-faire attitude to break times. That can be a mistake. Failing to establish a written policy may result in confusion for your workers. In addition, if you offer breaks, you are required by the DOL to document your break policy. Use our sample policy as a guideline and adapt it to your specific business needs, keeping in mind your states break time laws, if any.
3. Making Employees Clock Out for Rest Breaks
The law states that if you offer a break that’s 20 minutes or less, you have to pay the employee for that time. FLSA requires breaks under 20 minutes to be included in overtime calculations. So it’s best not to require employees to clock out for rest breaks. However, some timekeeping systems allow employees to record break time as ‘paid time not worked’ so managers can see when breaks are being taken and to ensure break time isn’t abused. However, be sure that when your rest break time data passes to payroll, that it’s recorded as paid time, or you could get yourself in trouble with the FLSA or your state labor agency.
Why It’s Important to Give Your Employees Enough Break Time
Employees aren’t machines. They need to eat, drink, and manage other bodily functions. Offering rest and lunch breaks is in your best interest, because a hungry, thirsty or stressed-out employee is unlikely to remain productive for long. And once employees find out you don’t pay for breaks, or provide time for a lunch break, they’re likely to quit. That increases your unemployment insurance rates as well as requires you to continually have to recruit and hire new workers.
The graphic below shows how break time contributes to employee productivity and happiness:
The NY Post reported this past year that restaurant chain TGI Fridays had to pay $19 million in fines and back pay for failing to keep proper records, and for improperly paying employees for work time, breaks, and overtime. So make sure you follow federal and state laws if you do choose to provide breaks for your employees.
As far as federal laws and policies go, DOL break and lunch break laws are fairly easy to abide by. What’s tricky is making sure you stay informed as laws change or your business expands into multiple states. So check back here often as we update our articles annually with details such as when break time laws change. Smart employers err on the generous side, making sure to take care of their employees, maximizing employee engagement and retention as well as employee productivity. We encourage you to be an employer of choice by providing a generous break and lunch policy to your staff.
To help you ensure break time and overtime are calculated properly, we encourage you to consider using a payroll provider like Gusto.