Meal Break and Rest Break Laws
By FindLaw Staff | Legally reviewed by Eric Harvey, J.D. | Last reviewed December 09, 2022
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The Fair Labor Standards Act (FLSA) doesn't require that meal or rest breaks be given to workers. However, when employers do offer short rest breaks, federal law considers them paid work time that must be included in the total hours an employee works during a week. Any time spent on a break must also be used in determining whether overtime is owed, and all employers covered by the FLSA must comply with laws concerning break time for nursing mothers.
Some states do have requirements for meal breaks and rest breaks. If you work in a state which doesn't require meal or rest breaks, these breaks are a matter of agreement between the employer and the employee (or the employee's representative).
Below, we will discuss state laws that provide for meal breaks and rest breaks. For more information, visit FindLaw's Wage and Hour Laws section.
Twenty states have generally applicable laws regarding required meal break time:
- New Hampshire
- New York
- North Dakota
- Rhode Island
- West Virginia.
The most common length of time for meal breaks among these states is a 30-minute break that takes place in approximately the middle of any workday.
Generally speaking, executive, administrative, professional employees, and outside salespersons are exempt from required meal break times. California law also exempts construction workers, commercial drivers, private security officers, and employees of utility companies if the employees are covered by a valid collective bargaining agreement. In this case, the agreement must include a provision that provides for employees' meal periods.
Eight states have laws regarding required rest break time when it comes to the private sector:
The most common length of time for rest breaks among these states is a 10-minute break during each 4-hour period of work.
Below are examples of states that provide for both meal break time and rest break time.
An employer can't employ an employee for more than five hours per day without providing the employee with a meal break of at least 30 minutes. If the total work period per day of the employee isn't more than six hours, the meal break may be waived by mutual consent of both the employer and employee.
A second meal break of at least 30 minutes is required if an employee works more than ten hours per day. If the total number of hours worked is no more than 12 hours, the second meal break may be waived by mutual consent of the employer and employee only if the first meal period wasn't waived. An on-duty meal period is counted as time worked and is permitted only when the nature of the work prevents relief from all duties. In this case, there must also be a written agreement between the parties. But the employee can revoke the agreement at any time.
In Brinker Restaurant Corp. v. Superior Court (2012), the California Supreme Court concluded that employers have to make meal breaks available to employees and relieve employees of all duties during meal breaks. But at the same time, the court concluded that employers have no obligation to ensure that employees take a meal break. The court also concluded that a first meal break generally must fall no later than five hours into an employee's shift, while an employer isn't obligated to schedule meal breaks at five-hour intervals throughout the shift.
Employers must authorize and permit one paid, 10-minute rest break for each four hours worked or major fraction of that number of hours worked. If it is possible, the 10-minute rest break should occur in the middle of each work period. The 10-minute rest break isn't required for employees whose total daily work time is less than 3.5 hours.
Working through a rest break doesn't give an employee the right to leave work early or arrive late, and the 10-minute rest break isn't designed to be exclusively for using restroom facilities. Suitable resting facilities are required to be in an area "separate from toilet rooms," the California Department of Industrial Relations has said. Using the bathroom during the work period doesn't count as a 10-minute rest break.
Employees are entitled to an uninterrupted and "duty-free" meal break of at least 30 minutes when the scheduled work shift exceeds five consecutive hours of work. This break only qualifies as a non-work/non-paid period of time when the employees are completely relieved of all duties and permitted to engage in personal activities.
When an uninterrupted meal period is not possible due to the nature of the business or other circumstances, the employee is permitted to consume an "on-duty" meal while performing duties. The employee is permitted to fully consume a meal of choice "on the job" and be fully compensated for the "on-duty" meal period without any loss of time or compensation.
Every employer must authorize and permit rest breaks. If practicable, the rest break should be in the middle of each four-hour work period. A paid 10-minute rest break for every four hours or a major fraction thereof is permitted for all employees. Such rest breaks can't be deducted from the employee's wages. It's not necessary that the employee leave the work premises during the rest break.
Get Legal Help with Your Questions About Meal Break and Rest Break Laws
Because state laws differ with respect to required meal breaks and rest breaks, you should review your state's laws to determine your rights as an employee. If you need help understanding your rights, it's best to speak with a local employment lawyer who can provide an analysis of the laws and facts specific to your situation.
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