DOL Wage and Hour Division regulations do specify when
work breaks, including meal periods, rest periods, and sleeping time,
must be counted as paid work time subject to federal minimum wage
and overtime requirements (29 CFR 785.18 through 785.23).
Bona fide meal periods. Employers are not required to pay employees for time spent during
bona fide meal periods. Bona fide meal periods are ordinarily breaks
that last at least 30 minutes, but they may be shorter under special
conditions. They do not include coffee or snack breaks; these are
rest periods that may have to be counted as paid work time.
Free from duty. During
such an unpaid meal period, an employee must be completely relieved
from duty for the purpose of eating a regular meal. It is not necessary
that an employee be permitted to leave the premises if he or she is
otherwise completely freed from duties during the meal period. An
employee who is required to perform any duties, whether active or
inactive, while eating is not considered to be completely relieved
of duties. For example, an office employee who is required to eat
at his or her desk or a factory worker who is required to be at his
or her machine is working while eating. Some courts, however, have
not required that the employee be completely relieved from duty during
bona fide meal periods. Instead, they examined whether the employee's
time is spent predominantly for the employer's benefit.
Firefighters. Meal
periods must be counted as paid work time for firefighters employed
on tours of duty of 24 hours or less. This applies only to firefighters
who are exempt from overtime because they are employed on a tour-of-duty
basis, as defined in Section 207(k) of the FLSA (29 CFR 553.223, 29 USC 207(k)).
Short rest breaks of 5 to 20 minutes are common in the
workplace. Rest breaks are not required by federal law, but if they
are offered, they must be counted as paid work time. Compensable time
of rest periods may not be offset against other working time such
as compensable waiting time or on-call time.
Many states require paid and/or unpaid meal and/or rest
breaks.
If state law requires a short (20-minute-or-less)
rest period, federal law requires that it be counted as paid work
time.
Are short rest breaks compensable when they’re
taken under the FMLA? As noted above, the FLSA does require
short rest breaks up to 20 minutes in duration to be compensated,
as such breaks are primarily to the benefit of the employer. However,
in limited circumstances—if rest breaks, even those of less than 20
minutes, primarily benefit the employee—they are not compensable.
(An example of a rest break that primarily benefits the employee would
be an accommodation break needed to assist with an employee’s chronic
back pain.) When FMLA-protected breaks are necessary to accommodate
the employee’s serious health condition—predominately benefitting
the employee—they are not compensable under the interpretation of
the FLSA. FMLA expressly provides that FMLA-protected leave may be
unpaid. Furthermore, this unpaid basis has been considered and permitted
in conjunction with the requirements of the FLSA. Note, for example,
that unpaid leave under the FMLA is afforded special treatment in
its interaction with FLSA’s salary basis rule for determining exempt
status. An exempt employee will not lose his or her exempt status
if his or her weekly salary must be adjusted to account for leave
taken on an unpaid basis under the FMLA. Employees exercising their
right to FMLA are entitled to the same benefits they would receive
if they were not taking FMLA leave. So, if employees are regularly
entitled to two paid rest breaks during the workday, the FMLA-protected
employees must receive this same compensable time. However, the remaining
break periods may be unpaid and counted toward the worker’s annual
FMLA entitlement.
Under certain conditions, sleeping time is paid work
time. Different rules apply depending on whether the employee is on
duty for fewer or more than 24 consecutive hours.
Less than 24-hour duty. An employee who is required to be on duty for fewer than 24 hours
is working, even though he or she is permitted to sleep or engage
in other personal activities when not busy. For example, a telephone
operator who is required to be on duty for specified hours is working
even though he or she is permitted to sleep when not busy answering
calls. It makes no difference that the operator is furnished facilities
for sleeping. The operator's time is given to his or her employer.
He or she is required to be on duty, and the time is work time.
Duty of 24 hours or more. When an employee is required to be on duty for 24 hours or more,
the employer and employee may agree to exclude from paid work time
meal periods and a scheduled sleeping period of 8 hours or less, provided
adequate sleeping facilities are furnished by the employer, and the
employee can usually enjoy an uninterrupted period of sleep. If the
sleeping period is more than 8 hours, only 8 hours will be excluded.
If there is no agreement that the time not be counted, the 8 hours
of sleeping time and meal periods are paid work time.
If the sleeping period is interrupted by a call to duty,
the interruption must be counted as hours worked. If the period is
interrupted to such an extent that the employee cannot get at least
5 hours of sleep, the entire period must be counted as working time.
Employees residing on employer's
premises. Employees who reside on their employer's premises
on a permanent basis or for extended periods are not considered to
be working all the time they are on the premises. Ordinarily, they
have periods of complete freedom from all duties and enough time for
eating, sleeping, and entertaining. It is difficult to determine the
exact number of hours worked under these circumstances, so any reasonable
agreement of the parties that takes into consideration all the relevant
factors will take precedence.
Last updated on April 26, 2018.