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What do you mean I don’t get a break?

By Melissa Cook

Before working in human resources, my knowledge and understanding of what my rights as an employee were limited to what I was told by my employer.  Sure, you can read the compliance poster in the break room, however company policy and instructions from a supervisor often guide your understanding or belief in what you are, and are not, entitled to.  Breaks are certainly one of those topics that can be very confusing to both the employee and employer.

In many states, there is no legal obligation for an employer to provide an employee over the age of 17 or 18 a break at all.  For FLSA Non-Exempt employees this means that from when you start the day to when you end is all work time and you are supposed to be paid for every hour worked, per the Department of Labor (DOL) Fair Labor Standards Act.  The reality is that most employees take some time during the day to eat a meal, go to the bathroom, talk to their peers, take a smoke break, etc.  Whether or not you are “entitled” to take the break is another story, as well as whether or not you are “entitled” to be paid for the break.

Per the DOL breaks of less than 20 minutes are compensable to the employee.  This means the smoke break 5 times a day, the water cooler chats, the wandering talkative employee, etc. are all compensable times in which the employee is not working but should be since you are paying them for their time.  Practically speaking, no one expects the employee to work from the moment they start to the moment they leave without some type of interruption to the work.  However, breaks become an entitled or expected norm, especially when permitted consistently, creating a business problem that impacts both operational productivity and financials since you are paying for work to be performed.

In our local region of DE, PA, NJ, and MD, two states provide no legal justification for any breaks.  MD requires retail establishments to provide a set number of breaks based on the number of hours the non-exempt employee is working.  In DE, there is the Meal Break law, which requires a specific 30-minute uninterrupted meal break during a certain time period during a scheduled 7.5 hour shift.

What does this all mean for you as a business owner and leader?  You have to establish a culture of effective performance management to minimize the unnecessary and unplanned breaks to keep productivity high while recognizing the legal obligations for compensation related to break duration.  You should also make sure through your employee handbook and training that the workforce is trained on, and understands, your policies to set consistent expectations.  Finally, you need to make sure your supervisors are holding people accountable, however I am going to let Daniel Schmitt talk about supervisor risk.

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