While employers are recommended to give employees time to eat lunch, a meal break is not necessarily a requirement in every state. Federal and state laws vary on what employers must do. Even where meal breaks are mandated, in states like New York, the rules vary regarding how and when breaks are given.
Section 162 of the New York Labor Law requires all public and private employers to give meal breaks to all employees who work at least 6 hours a day. This applies to both salaried and hourly workers. These meal breaks need not be paid. Employers do not, however, have to provide additional shorter breaks during the day.
The length and timing of the breaks differ for factory and non-factory workers:
Federal law does not require employers to provide meal or other breaks. However, where employers do give breaks, they must comply with federal law regarding whether that time is counted as paid. These provisions state that short breaks of less than 20 minutes must be paid, and the time should be included in determining hours worked during the workweek for overtime purposes. Breaks of over 30 minutes are not required to be paid or counted as part of the hours worked.
Employees are entitled to an additional 20-minute meal break between 5 pm and 7 pm if they begin their shift before 11 am and end after 7 pm.
Employees can be required to take a meal break. Employees may be able to request a waiver, however, provided they negotiate the waiver voluntarily, knowingly and received a desirable benefit in exchange for giving up the meal break. Further, the employee must be in a type of job where strict compliance with break laws is impractical.
In addition, an employee who works alone or who is the only one in the position on duty may receive a waiver and be able to eat on the job. However, if the employee wants a meal break, the employer must provide it even if the employer has no one to cover for the employee.
Working environments can be fluid depending on operational needs, meaning that occasionally, employers can set specific mealtimes. Employers are permitted to round the starting and stopping of mealtimes in intervals of between 5 and 15 minutes providing this does not result in employees losing time.
Both factory and non-factory workers can have their lunch breaks shortened to 30 minutes unless they would face hardship from the shorter break.
Additionally, the “brown bag lunch” is a period when employees eat lunch while attending a work-related presentation. If the presentation is mandatory, employees are still considered to be at work and must be paid for the meal period. If attendance is voluntary, it is considered a meal break and need not be paid.
Since employers must provide a meal break within a specific window of time, generally, employees cannot forgo the break so they can end their workday sooner. However, employers and employees can agree to such terms on a temporary basis provided that the employee still has the right to take the break if he or she wants to do so.
It’s common for employees to leave work premises during meal breaks, but there’s no section of the Labor Law that says they must be allowed to do so. What matters is that they are relieved of their duties during the break time (unless the employee works alone as outlined above).
Employees may use meal breaks to rest, but purely rest-based breaks are different. These must be permitted and range from 5 to 20 minutes under Federal Regulation 29 CFR §785.18 and must be counted and paid for as part of the hours worked. Unauthorized extensions of these permitted times need not be paid.
If you’re an employer and in any doubt about meal and rest best practices, contact a labor and employment attorney and/or your nearest office of the Division of Labor Standards for guidance.
Federal and state employment laws can be complex. It is best practice for employers to have an attorney review employment and payroll practices regularly to ensure they comply with all current laws. Employees who believe their rights may have been violated should consult with a qualified employment lawyer to learn more about available courses of action while their claim is within the statute of limitations.