Labor laws vary: Let’s do lunch

Q One of the techs in
our lab routinely works through lunch, and leaves a half hour early
every day. Our employee manual says that employees are to have a
30-minute lunch break and be on the job for the entire shift unless
prior arrangements are made. What are our responsibilities under the
labor laws?

A Regulation of lunch
breaks revolves around state laws, which may mandate that lunch breaks
are (or are not) paid. You will need to check with your attorney to make
certain what the details are in your particular state, but in general,
compensation for, and taking of, employee breaks falls into several
general categories.

The Fair Labor Standards Act (FLSA) does not
require that meal or rest breaks be given. Short breaks (five to 20
minutes), however, which are given to employees as a matter of
company policy are generally considered to be compensable and to count
toward the 40-hour workweek. That policy must be clear and specific on
taking breaks, and employees are not entitled to extend these breaks and
receive compensation without prior authorization. Companies that offer
short breaks as a matter of policy should be clear and specific about
time and frequency, and must then count that time as part of the regular
workday. In addition, they may not count it against other compensable
waiting time such as compensable on-call time — something that may be
relevant to the lab environment.

Employers do have a general right to prescribe
working hours, breaks, and shifts. Be aware, however, that some state
laws do require compensable work breaks for employees, and unions will
often negotiate these periods as a part of the collective-bargaining

Federal law does not mandate a meal break, and
state laws will determine how that should be handled. A few states
require that a meal break be given if the employee works a specified
period, generally seven to eight hours. In many, but not all, of these
states, though employers are required to provide time for meals, the
break is not counted as time worked. This can get complicated when
statutory language does not distinguish between short breaks and meal
breaks, and provides a total minimum time, as the line between breaks
that would be paid under federal law (as a matter of policy) only when
company policy and those that must be given breaks but are unpaid under
state law can be blurry. In addition, state laws mandating breaks have
various exclusions that may affect the applicability to the lab.

Keep in mind, however, that an employee who is
not “completely relieved of duty” during an otherwise non-compensable
work break has a claim to compensation. Policies or practices that
require employees to eat at their desks, for example, mean that lunch
breaks are compensable time.

Generally, requiring employees to take lunch
breaks is a good practice for managers. Although eating at the desk is a
problem in labs for obvious reasons, employees may carry a beeper if
required to return to cover on-call services. Such policies may make the
lunch break compensable time, because the employee is not fully free
from workplace duties.

Failing to adhere to state laws concerning breaks
can be costly. Wal-Mart has been the subject of several multimillion
dollar lawsuits for failing to give workers mandated breaks and for
forcing workers to work off the clock. If a lunch break is considered
compensable because the employee is not completely relieved of duties,
the extra time worked may be compensable as overtime under federal law.

In this situation, you need to determine whether
your state mandates breaks, and, if so, whether and under what
circumstances they may be voluntarily waived. If it is legally
permissible for this employee to work a straight-through shift, get the
arrangement formalized in writing as an alternative work arrangement so
there is no ambiguity.

With regard to the tech who skips breaks over the
course of a shift and then leaves early, if you agree even tacitly to
this arrangement, you may end up creating hard feelings among his
co-workers. From a pure management standpoint, it may be better to
enforce the lunch break policy. When that employee leaves early at the
end of his shift, coverage and workflow become problems for the
remaining team. Unless the practice makes sense for the needs of the
entire team and the demands of the workload, overall policies make more
sense and will reduce your risk of being held liable for violation of
labor laws.

Related to the issue of rest and meal breaks are
health, bathroom, and smoking breaks. Employees who need breaks from
work because of physical illness or injury and who fall under the
Americans with Disabilities Act may be entitled to breaks in addition to
the usual workday rest and meal breaks. Although federal law does not
prescribe restroom breaks, both the Occupational Safety and Health
Administration and common sense dictate that they be given as needed.
Employees may use their customary break time for smoking, but neither
state laws nor federal laws provide for mandated smoking breaks. Breaks
for religious observance may be required under anti-discrimination
statutes and should be evaluated on a case-by-case basis with legal

Barbara Harty-Golder is a pathologist-attorney
consultant in Chattanooga, TN. She maintains a law practice with a
special interest in medical law. She writes and lectures extensively on
healthcare law, risk management, and human resource management.

MLO’s “Liability and the Lab”is intended
to provide risk management and human resource management education; it
is not intended to provide specific legal advice. If you require legal
advice, the services of an attorney should be sought. Dr. Harty-Golder
welcomes your questions, which can be sent to her at
[email protected]
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