Meal Breaks: Issues When Employees Work Through Q&A
How should you deal with nonexempt employees who want to work through meal breaks to shorten their workdays? Should you allow this practice, or is it better to enforce your meal periods?
Q: We have several nonexempt employees who have been working through their meal breaks so that they can leave early. Should we allow them to work through lunch? How can we discipline them for skipping these breaks?
(Download a free Meal Breaks model policy including HR best practices and legal background.)
A: Some nonexempt employees see working through meal periods as a way to earn additional compensation or to shorten their workdays. If you are in a state that does not regulate meal breaks, you have the discretion to allow employees to skip breaks and leave early or get paid for the extra time. However, although this approach gives employees flexibility, it also may create some unintended problems for the organization.
First, nonexempt employees may incur overtime by working through their lunch breaks if they do not take sufficient time off during the rest of the workweek. Second, employees whose jobs do not allow them to work through their meal breaks (for example, because they must be on duty at the end of the workday) may resent coworkers who have the benefit of skipping a break and leaving work early. Finally, meal breaks give employees a chance to relax and can help them work more efficiently during the second half of their workday. Thus, their productivity may suffer when they skip these breaks.
Further, if your state requires meal breaks, you should not allow employees to skip the breaks. Although federal law does not require meal breaks (the Fair Labor Standards Act (FLSA) only addresses when the breaks must be paid), many states mandate that employees take a meal break after a certain number of consecutive hours of work. States with meal break requirements include California, Colorado, Illinois, Kentucky, Massachusetts, Minnesota, New York, Tennessee, and Washington. In those states, you should enforce the break requirements by not allowing, or requiring, employees to work during meal periods.
If you do not want employees to work through meal breaks, you can discipline those who do under your normal disciplinary policies, but you must pay them for the time worked. Nonexempt employees must be paid for all time actually worked, even if the time is not specifically authorized. According to Department of Labor regulations implementing the FLSA, found in 29 C.F.R. §§785.11, et seq., if you are aware that a nonexempt employee is working more time than is required, you must compensate the employee, even if you did not request the additional work.
(Download free Meal Breaks model policy including HR best practices and legal background.)
So, if you know or have reason to believe that the employee is continuing to work, the time is considered working time that must be paid. Therefore, it is management’s duty to stop employees from working additional time if you do not want to pay for the work time. A rule against extra work is not enough; you also must make every effort to enforce the rule.
Robin Thomas, J.D.
Personnel Policy Service, Inc.
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