Non-exempt employees, inside salespersons, and exempt computer professionals who work for a period of more than five hours per day must be provided a 30 minute unpaid meal break in addition to another meal period no later than the 10th hour if more than 10 hours are worked. The employer must provide the meal break, but does not need to ensure that it is taken. In order to qualify as a meal break, the employee must be relieved of all duty, free to leave the premises, should have the opportunity to be uninterrupted for 30 minutes, and is not discouraged from taking a break. If possible, the employee should be required to clock in and out for their meal period for timekeeping purposes.
Waived Meal Periods:
When can meal periods be waived? If the employee’s workday is 6 hours or less, the meal period can be waived. Additionally, an employee can waive their second meal period if their first meal period was taken and the workday is 12 hours or less. These are the only exceptions to waiving a meal period and employees may not skip their period simply to shorten their workday. You owe the employee one hour of pay if the employee is unable to take one or more meal breaks.
What happens if an employee does not take a meal break before the end of their 5th hour of working? The employer would owe the employee one hour of pay if the employee were unable to take one or more meal breaks. On the other hand, employers should be extremely cautious if an employee asks to take a meal break after the end of their 5th hour of working. It is advisable for the employer to not permit this, in the case of that an employee could later sue for not being able to take timely meal breaks. Even worse, after an employee is terminated they could sue for not receiving the pay for their missed meal period in their final paycheck, subjecting the employer with heavy waiting time penalties.
What can you do to help avoid these situations? The employer should take extra precaution and have each employee sign when receiving their paycheck that they have taken their meal and rest breaks for that pay period. There should also be a blank space for the employee to fill in if there were times or reasons why they were not able to take their meal or rest breaks. The employee should also indicate if they had approval from their manager if they did not take their meal or rest break.