Brenton C. McWilliams
Brenton C. McWilliams, Gulf Shores Lawyer Attorney

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Federal Wage and Hour Laws: Unpaid Lunch Breaks

Author: Brenton McWilliams

In this article, I’ll discuss the topic of whether an employer is required to pay its employees for a lunch break under the federal wage and hour employment laws. 

Let’s start off with a hypothetical situation. A group of non-exempt employees from a company regularly go out of town to work an entire day on a project. In the middle of the day, all the employees go to lunch together at a restaurant. The company pays for the lunch and they all sit together at a table. The project manager uses the lunch time to talk with the other employees about the work already completed in the morning and how they’ll coordinate the remaining work in the afternoon. The employees are paid by the hour, but the company does not pay the employees for this lunchtime. 

The question is, should the employer pay for this lunch break? My first thought would be “an employer normally isn’t required to pay employees for a lunch break, so why should it make a difference if they’re out of town or not? And, it’s pretty gracious of the company to cover the meal since going to eat is about the only option.” I also see how the employees could consider it unfair. Sometimes, on my lunch break, I like to run errands, play with my dogs or go buy a new tie. If an employee is stuck at a restaurant, out of town with their employer, they aren’t free to do any of these things. Both of these thoughts aren’t necessarily wrong, but they aren’t headed in the right direction.

Looking a little deeper, there are surprisingly (at least to me) a few, somewhat clear, United States Department of Labor (DOL) employment law regulations right on topic. 29 C.F.R. § 785.18 and 29 C.F.R. § 785.19 discuss rest periods and meal periods.

A short background discussion is necessary to start out. According to 29 C.F.R. § 785.18, an employer must count rest periods as hours worked. Rest periods are described as “periods of short duration, running from 5 minutes to about 20 minutes.” An employer is not required to count a bona fide meal period as work time. The answer to our question lies in the Department of Labor’s definition of a bona fide meal period. 

First, a bona fide meal period must be long enough for a meal. In other words, an employer can’t avoid paying for a break that’s truly a rest period by designating it as a meal period. “Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods.” “Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions.”

The hypothetical situation discussed above would pass this duration test. If the employees are going to a restaurant, the break is probably going to be over 30 minutes. Further, if the employees actually eat a full lunch at the restaurant, there’s pretty much no argument that the break wasn’t long enough for a meal.

However, there’s another requirement for the time to qualify as a bona fide meal period. The employee must also “be completely relieved from duty for the purposes of eating regular meals.” Bingo! The regulation elaborates further on this requirement and even gives a couple of specific examples: “The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.”

The project manager’s talk with the employees during the lunch break would likely disqualify the lunch break as a bona fide meal period. In essence it’s a meeting during lunch. Although the meeting may not require much out of the employees and it seems fair considering the employer is paying for the meal, it would probably be considered inactive work. Therefore, the employer should pay the employees for their time during the meal.

Every situation is different. There are exemptions to the wage and hour and other employment laws particular to certain employers and employees. Individual details, not discussed in this article, could completely change the circumstances. If you’re an employer or an employee, and you have a question about payment for lunch breaks, you should speak with an attorney (maybe even me).