Subject to some industry-specific exceptions, most non-exempt (hourly) employees are entitled to the following breaks:
- One 10-minute (net) paid rest break for every 4 hours worked
- One 30-minute (uninterrupted) unpaid meal break for every 5 hours worked
- If an employee works 6 hours or less, he/she may waive a meal period by mutual consent.
- The second meal break may be waived if a shift is between 6 and 12 hours
For the unpaid meal break, the employee must be relieved of all duty and free to leave the premises; the employer must “permit and authorize” the meal break, and not take any steps to discourage the taking of the break. This includes ensuring that there is enough staffing to relieve the employee; employees often claim that the employer prevented them from taking meal breaks by understaffing.
If an employee is prevented from taking a meal and/or rest break, he/she must be compensated for an extra hour of work at the regular rate of pay for each day and each type of violation; that is, if an employee is prevented from taking both meal and rest breaks, he/she is entitled to two hours of extra pay and that information should be reflected on the paystub.
Meal and rest break claims are often difficult to defend. We suggest the following policies:
- Clearly posting the meal and rest break policy for all non-exempt employees to view
- Periodic reminders of the meal and rest break policy
- Stand-alone signed acknowledgment of the meal and rest break policy by each employee, including designating a person or supervisor to whom missed meal and rest breaks should be reported
- Inclusion of the meal and rest break policy in the employment handbook