Gimme a Break – What Employers Should Know About Meal Periods and Rest Breaks

By Joanmarie M. Dowling

Increasingly, employers are asking about legal requirements for breaks and meal periods.  Employers’ concerns about meal and break periods often stem from common employee misperceptions about requirements for breaks.  For example, employers often hear from employees who mistakenly believe that employers must provide a 15-minute break after every four hours of work.  No such rule exists in New York.  To battle these misperceptions, however, employers must know what federal and state law requires.  This knowledge helps employers to respond to employee concerns and ensure compliance with federal and state law.

Neither New York State law nor federal law requires an employer to give employees break period.  If an employer does offer a break period, generally that break must be paid.  Any break lasting 20 minutes or less must be included in the employees' hours worked and must be paid.

While New York law does not require break periods, it does specifically require meal period breaks for all employees, including white collar employees.  The length of the break depends on the type of employer: 

• Factory and manufacturing employers must give their employees 60 minutes for a noontime meal between 11 a.m. and 2 p.m.
• Mercantile establishments (generally places where merchandise is offered for sale) and all other non-factory employers must provide employees with 30 minutes for a noontime meal.  Again, this noontime meal period must be given between 11 a.m. and 2 p.m.

In addition to the noontime meal period, all employers must offer an additional meal period to employees who start a shift before 11 a.m. and continue to work until after 7 p.m.  This evening meal period must be at least 20 minutes long and must occur between 5 and 7 p.m.

Finally, an employer must provide a meal period to employees working a shift of more than six hours starting between 1 p.m. and 6 a.m.  This employee is entitled to a one-hour meal period if he or she is employed in a factory or other manufacturing setting, and a 45-minute meal period if employed in a mercantile establishment.  This meal period must be provided mid-way between the beginning and end of the employee's shift.

Although New York Labor Law provides for varied lengths based on the type of employer, the state Department of Labor’s guidelines permit shorter meal periods of not less than 30 minutes for all employers as a matter of course, so long as there is no indication of hardship to employees.

The Department of Labor also provides an exception where there is only one person is on duty or is the only one person in a specific occupation.  On a one-employee shift, the employee may eat on the job without being relieved, so long as the employee voluntarily consents to the arrangement.  If the employee requests a meal period, however, the employer must provide one in accordance with New York law.

While breaks are generally paid, employers do not have to pay employees for their meal period breaks so long as the meal period qualifies as a bona fide meal period. To be considered bona fide, the meal period must meet the following conditions: 

• The period generally must be at least 30 minutes.
• The employee must be completely relieved of his/her duties for the purpose of eating a regular meal.
• The employee must be allowed to leave his or her workstation--but not necessarily the employer's premises or worksite--and must be substantially relieved from his or her duties during the meal period.

Where the employee is not completely relieved of duty, however, the employee must still be paid.  For example, an employee who is repeatedly interrupted by work assignments or telephone calls is not completely relieved of duty and must be paid for the interrupted meal period.  Additionally, this interrupted meal period will not satisfy New York law requiring the provision of a meal period.  A technical violation of New York law may still occur, even when an employee is paid for the interrupted meal period.

Employers may be relieved from the state meal period requirements in two ways. First, employees may expressly waive their right to meal periods.  Such a waiver should be in writing and should be signed by the employee(s).  Requesting a waiver may cause difficulties from an employee relations perspective, as employees might be suspicious of waiving any statutory right.  Additionally, the validity of these waivers remains unsettled.

Employers may therefore find the second waiver option more attractive.  An employer may apply to the commissioner of the state Department of Labor for a shorter meal period time.  If granted, the commissioner's permit must be in writing and conspicuously posted in the main entrance of the employer's place of business.  The commissioner retains the right to revoke the permit at any time, however.
Employers must be cognizant of these break and meal period rules to ensure compliance with state and federal law, reduce or eliminate problems in the event of a Department of Labor audit, and avoid legal liability in the event that disgruntled former or current employees file wage and hour claims. 

The information in this article is intended as general background information on labor and employment law for JSEC members.  It is not to be considered as legal advice.  Joanmarie M. Dowling counsels and represents employers in a variety of labor and employment related contexts and is associated with Bond, Schoeneck & King’s Albany office.  She can be reached by e-mail (jdowling@bsk.com), phone (518-533-3230) or fax (518-533-3299).