Meal and Rest Periods

A common violation of the Fair Labor Standards Act (FLSA) is an employer's failure to pay an employee who performs work during what is considered to be his/her lunch break. To be considered a bona fide meal period, an employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough to be considered a bona fide meal period. "Completely relieved from duty" means that the employee is not performing any work to benefit the employer. For example, if an employee eats at his/her desk and answers incoming phone calls or greets incoming clients or customers while on his/her lunch break, that employee is not completely relieved from duty, and must be paid for his/her lunch break.

Another common violation of the FLSA is an employer automatically deducting or requiring an employee to automatically deduct a lunch break from an employee's time card each day, regardless of whether the employee is completely relieved from duty during his/her lunch.

If the employee performing work before or after his or shift, or performing work during his/her lunch break, causes the employee to work more than 40 hours in a workweek, then the employee is entitled to overtime pay at the rate of one and one half his or her regular pay.

For example, if an employee is scheduled for a shift from 8:00 am to 5:00 pm, but is provided with an hour lunch, that employee is working 8 hours a day. However, if the employee works during his/her one-hour lunch, then the employee is working 9 hours a day. If the employee works "on the clock" 40 hours that workweek, as well as 3 days during his/her lunch during that workweek, then the employee has worked 43 hours. In addition to his/her regular hourly rate, the employee is entitled to be paid one and one half his or her regular rate of pay for 3 additional hours of work. If the employee's regular rate of pay is $10.00 per hour, then the employee's overtime rate is $15.00 per hour. As such, the employee would be entitled to an additional $45.00 in overtime pay.

If an employee voluntarily comes to work early or stays after his/her shift, but is not performing any work, that time is not considered work, and the employee does not have to be paid for that time. For example, if an employee comes to work 10 minutes early and sits in the break room reading a newspaper or drinking coffee, that is not considered work time for which the employee is required to be paid.

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common and must be counted as hours worked. A violation of the FLSA would be an employer providing employees with a 20-minute rest period, or two 10-minute rest periods, but then requiring them to work 20 minutes extra after their shift to make up for the rest periods. If the extra 20 minutes of work after an employee's shift causes the employee to work more than 40 hours in a workweek, then the employee is entitled to overtime pay at the rate of one and one half his or her regular pay.