What Breaks (Rest, Snack, Meals, Smoking, Health, Etc.) Am I Entitled To under FLSA (the Fair Labor Standards Act)?

Overview

There appears to be much confusion about what break workers in the United States are entitled to for various breaks during working hours.  There is a Federal law, the FLSA (Fair Labor Standards Act) and some separate state laws that define breaks.  In general, the answer is, few (or no) breaks are required under law.  Most people are remembering special requirements that apple to child laborers (see this page for more information about under 18 rules) or certain occupations (like airline pilots).  The FLSA does not require breaks or meal periods be given to workers. Some states may have requirements for breaks or meal periods. If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee's representative).


Scope: Who Does This Apply To?

The Wage and Hour Division (WHD) of the United States is responsible for administering and enforcing some of our nation’s most comprehensive labor laws, including: the minimum wage, overtime, and child labor provisions of the Fair Labor Standards Act (FLSA). In general, the FLSA defines the term employee to mean any individual employed by an employer, including public agencies, any individual employed by the Government of the United States, any individual employed by a State, political subdivision of a State, or an interstate governmental agency.  There some exceptions such as family members involved in agriculture. The requirements generally do not apply to salaried employees (Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.) For more information see this page. So, in general, if you get paid by the hour for your work, these break rules apply to you.


Federal Laws on Breaks During Work

Workplace laws and rules are covered under the Department of Labor's FLSA and also under OSHA (Occupational Safety and Health Administration).  You can find the full text of the FLSA (Fair Labor Standards Act) by clicking on the link.  We'll also discuss it in plain English further down this page. We have more information about federal wage rules on this page.  In short,  the Fair Labor Standards Act, does not require employers to give their employees any breaks from work for any reason.


State Laws on Breaks During Work

States may also enact their own laws about working conditions, as long as the are consistent with and at least as protective as the federal rules. But, while many employers choose to give their employees breaks for meals and rest, the Fair Labor Standards Act, does not require employers to give their employees any breaks. As a separate question, whether an employee is required to be paid for his or her time during meal breaks may be a matter of federal law; see this paragraph.

Rest Breaks

There are only 7 states (as of February 2006: California, Colorado, Illinois, Kentucky, Minnesota, Nevada, Oregon and Washington) that have laws requiring that employers give their employees rest breaks. See this page for a list of the states and details. Of course, if you work in a trade labor union, you probably have rules regarding breaks in the collective bargaining agreement  Of course, many employers give their employees rest breaks, even if the law does not require them to do so. However, you may not know that the federal law governing labor standards, .

If you work in one of the states where there is no law, then your employer is only voluntarily giving you rest breaks if you have them. Your employer is free to revoke that policy at any time, or may make any appropriate modifications or limitations it chooses.
back to top

Breaks for Meals

There are only 19 states (as of February 2006: California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Rhode Island, Tennessee, Washington, and West Virginia; plus Guam and Puerto Rico) that have laws requiring employers to give their employees meal breaks. See this page for a current list of the 19 states and more details. Most states do not require that employer give workers time off for meals - where they do require meal breaks, the most common standard is 30 minutes.

As mentioned above, if you work in a trade labor union, you probably have rules regarding breaks in the collective bargaining agreement.  But aside from these circumstances, if you work in one of the states where there is no breaks rules and you are not bound by a union agreement, then your employer is only voluntarily giving you a meal break (if you have one). Your employer is also free to change or eliminate that break at any time, too.  We may not perceive this to be fair, but it is the current conditions in the United States.


Other Types of Breaks

Religious Breaks

Some employees need break time during the day in order to practice their religion, such as prayer or Bible study. In this case, an employee can ask for a "reasonable accommodation:".  This is a special change in the company's workplace rules that would allow the employee to engage in a religious practices.  Employers are required to provide this unless it would impose an "undue hardship" on the employer's business, which is defined as an accommodation that is too costly or difficult to provide. Obviously, you will be most successful if work closely with your employer to find an mutually satisfactory accommodation.

Health Breaks

Some employees need break time during the day in order to tend to their health needs. If the employee is able to perform all of the essential functions of a job, except for those the disability prevents the employee from performing, the Americans with Disabilities Act and many state disability laws require that the employer provide the worker with a "reasonable accommodation". It varies greatly in each case and an employer is not required to make an accommodation for a known disability of a qualified applicant or employee if it would impose an "undue hardship" on the employer's business. Undue hardship is defined as an accommodation requiring "significant difficulty or expense."

The key is for the individual to work out a reasonable accommodation with their employer.  The problems occur when either the employer or the employee isn't reasonable.

Restroom Breaks

Is there any law that applies to bathroom breaks? I work on a production line, and my employer only allows bathroom breaks during certain times in order to keep the line moving. This can be very hard on people, to say the least, and can present a health hazard.
The ability to take bathroom breaks should not be considered a privilege. Denying workers their rights to use the bathroom facilities as needed could be to the detriment of a worker's health. Denying workers the ability to use the restroom when they need to, or with unfair delays or obstacles, is a violation of workers' rights and an affront to dignity.
There is not a federal law that specifically applies to the number and duration of bathroom breaks. However, there are Occupational Safety and Health Administration (OSHA) regulations which require employers to provide adequate bathroom facilities, and prevent employers from imposing "unreasonable restrictions" on bathroom use. The intent of these regulations is that employees are able to use bathroom facilities promptly, recognizing that the frequency of bathroom visits necessary may vary among employees, depending on factors such as the temperature, medical conditions and the effects of medication, and fluid intake.
In production environments where the absence of one or more individuals can adversely affect a productive work flow, OSHA recommends the adoption of a signal system, so that employees can request relief by signaling for another employee to take the spot on the work station. If employees are not being forced to wait an unreasonable amount of time for bathroom use, a system like this complies with OSHA regulations.

Smoking Breaks

Employees have no rights in any state to have smoking breaks.  In this day and age, understanding the adverse health affects that smoking has on smokers and those who breath secondhand smoke, it is hard to beleive that some smokers still think they have a "right" to smoking in the workplace or public venues.


Other Questions About Breaks

Youth Workers

Keep in mind, as mentioned at the top of this page, that under 18 year olds have their own special rules. Even states that do not have requirements for rest or meal breaks for adults usually have provisions requiring for workers under age 18 to receive more frequent or longer breaks than adult employees. You can get more information on these pages for state labor department and/or the federal Department of Labor.

Payment for Time During Breaks

FLSA generally does not consider breaks to be work time, and employees are not required to be paid for them, as long as the employee is completely relieved from duty for the purposes of eating regular meals and the meal period is 30 minutes or more (unless special conditions exist.). As a note, Employee are not considered "completely relieved from duty" if they are required to perform any duties, whether active or inactive, while eating. For example, if an employee is required to eat at their desk or required to be at their machine, is working while eating. For more information, see this page on FLSA Regulations on Meal Periods.

Similarly, under FLSA, rest periods of short duration (for example, five to twenty minutes) are considered to help make employees' work more efficient, and as such, are customarily paid. They must be counted as hours worked, and cannot be docked against other time for which workers must be paid, such as waiting time or on-call time. Of course, if you overstay or extend your break beyond the time authorized by your employer, your employer may deduct the excess time from your hours worked, as long as the employer has expressly and clearly communicated to the employee that the authorized break may only last for a specific length of time, and that any extension of the break is contrary to the employer's rules, and that any extension of the break will be punished. For more information, see this page on FLSA Regulations on Rest Periods.

Keep in mind that you may not be covered by the FLSA! See this page about the FLSA for more information!


Enforcement: What to Do If You Live in a State With Break Rules and You Are Being Denied  Breaks

The Wage-Hour Division of the U.S. Department of Labor enforces FLSA requirements. Employees should know that they may not be fired or in any other manner be discriminated against for filing a complaint or for participating in a legal proceeding under FLSA.
Employers may be prosecuted criminally and the fined up to $10,000 for willful violations. Second convictions may bring a prison term.

If the WHD agrees with you, you should be able to get the money owed you by:

IMPORTANT: There are time limits in which allegations of unpaid wages must be made in a filing.  You must file a lawsuit in court within 2 years of the violation for which you are claiming you are owed back wages.  The only exception is when the court finds an employer's willful violation: in this case a 3-year deadline applies. Check with an attorney before filing your claim!. If you can't afford an attorney to assist you, you can file your claim with the state and federal administrative agencies yourself.

Contact the Wage-Hour Division to report a potential FLSA unpaid wage violation, at:

References:

This page was updated on 21-Feb-2008