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October 31, 2012
Expert shares tips on paid vs. unpaid breaks

Paid and unpaid breaks are one of the most misunderstood areas of employment law. To help employers navigate employee work breaks, Franczek Radelet attorney William Pokorny shares a few of his tips:

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  • If you use a timekeeping system that automatically deducts for 30-minute meal breaks, you must give employees a way around it--a reliable way to record that the break wasn't taken, or was cut short, and thus must be paid.
  • The best system is to require employees to clock out for any break, paid or unpaid, and to clock back in when they return to their workstations.
  • Not every employee has to record each unpaid meal break that he or she missed; if there's a pattern among workers of missed breaks--for reasons common to employees in your business--a court is likely to determine that you should have known they were working through and paid them accordingly.
  • If some or all of your nonexempt employees are unionized, their collective bargaining agreement can specify that their unpaid meal break is shorter than 30 minutes, or even under 20 minutes.
  • If you feel that some of your employees are abusing their paid-break privileges of 20 minutes or less, discipline them in some way other than depriving them of pay for those breaks.
  • Must every employee take every unpaid break to which you entitle him or her? No, says Pokorny. Illinois law, for example, says "employers shall permit ... breaks"--not "must." Do allow people the option, for example, of working through a meal break in exchange for the privilege of leaving work 30 minutes early.
  • Remember that plaintiffs' lawyers are looking for you to mess up on this issue: They can get liquidated, or double, damages for their clients and win their fees as well.

Related article: Yes, those are the breaks: But paid or unpaid?

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