Reprinted from the November 1, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Break Time:
If Employees Must Stay, Do You Have To Pay?

Many employees use their lunch breaks for anything but eating. Some pick up dry cleaning or go to the gym. Others get their cars serviced. Still others go out just to get fresh air. If you have a rule requiring employees to stay on the premises, you can be sure that you will hear them complain about how you’re controlling their time. The question is, does restricting their activities turn the unpaid meal break into time that must be paid?

Employees Complain
“We might as well be in prison,” griped Alicia Jeffries, as she took a bite out of her sandwich.

“You can say that again,” chimed in Mick Mistashi. “Not only do we have to eat in this closet they call a lunchroom, but we can’t even make phone calls or leave the building.”

“Since we can’t do what we want, we’d be better off working while we eat,” said Jeffries. “At least we would get paid.”

“We should be getting paid,” asserted Naomi Hart. “After all, they’re telling us what we can and cannot do on our lunch break.”

The three decided to approach their manager about this matter.

Manager Explains
“Simply put, a few bad apples have ruined it for everyone else,” frowned manager Hawk Lanlow. “Due to the problem with missing inventory, the company felt that the best way to help prevent internal theft was to implement the current lunch break policy.”

“We understand the reasoning behind the policy, but we don’t understand why we don’t get paid for that time,” pressed Jeffries.

“That’s easy. You’re not working during your 30-minute meal breaks.”

“But we’re not free to use the time however we want,” shot back Mistashi.

“Sure you are,” said Lanlow. “I never interrupt you with work. That time is yours to do what you want.”

“Unless we want to run errands or make a phone call,” Hart retorted.

DOL Speaks
Not satisfied with Lanlow’s answers, the employees went to the Department of Labor (DOL). They didn’t like what the DOL had to say either. In an opinion letter, it said the policy did not infringe on employees’ rights or convert the meals into compensable work time.

Reason: Although the company placed restrictions on where employees could take their meal breaks, they were free from interruptions during that time. Consequently, their breaks qualified as unpaid time.

Note: DOL opinion letters are provided as general information. They are not meant to provide legal opinions for the general public and can only be used by the company that requested them.

NO PLAY, NO PAY
Keep from inadvertently converting unpaid meal breaks into compensable work time by making sure employees are “completely relieved” from duties. Employees are not relieved if they are required to perform any duties, whether active or inactive, while eating. It is not necessary to permit employees to leave the premises during a non-compensable lunch break if they are otherwise completely free from their job duties.

Some managers assume that if an employee is completely relieved from duties during a rest break (as opposed to a lunch break), then that time is non-compensable, as well. One company learned the hard (and costly!) way that that’s not true when it was ordered to fork over $240,000 in back wages and fines for docking hourly employees for short rest breaks.

Employees must be paid for short rest breaks (typically, between five and 20 minutes). However, when stragglers turn short rest breaks into long ones, you don’t have to pay for the extra time taken, according to the DOL, if you have expressly and unambiguously communicated to employees that:

1. the authorized break may only last for a specific length of time;

2. any extension of the break is contrary to the employer’s rules; and

3. any extension of the break will be punished.

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