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Can My Boss Not Let Me Take My Lunch Break? I Need A Wage And Hour Lawyer!

On Behalf of | Oct 6, 2015 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Wage Theft Attorney Reply: Should I get paid if I work through my lunch? What can I do if my employer doesn’t give me enough time to eat lunch? Can I sue my employer if my boss deducts time for lunch even if I don’t take a lunch break?

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Lunch. It is my favorite part of the work day, and based on all the questions our wage and hour attorneys get about lunch, I think it might be everyone’s favorite. But, is everyone legally entitled to a lunch break? And the better question, what actually constitutes a lunch break? Is eating a sandwich at your desk for ten minutes a lunch break, and if so, how much time can your employer deduct from your pay?

As our wage and hour lawyers have previously blogged about, there is no law requiring that employers give employees lunch breaks or other rest breaks throughout the day. However, if you skip breaks or work through lunch and aren’t paid for your time, your employer will be liable for violations of the Fair Labor Standards Act (“FLSA“). Under the FLSA, an employer does not need to pay for a break that is a “bona fide meal period” the FSLA specifies that:

Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. 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 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.

However, employers do need to pay for rest periods. The FSLA defines rest as:

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.

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Recently, the Fifth Circuit Court of Appeal found that since the employees in Naylor v. Securigard Inc. were required to travel for long periods of time during their 30 minute lunch breaks, the lunch breaks were merely rest periods, and the employees should have been paid. The employees here were security guards who worked eight hour shifts with two scheduled 30 minute meal breaks. The guards were not allowed to eat at the gate or while sitting in a parked company car. Instead, the guards were required to remain armed an in uniform, and drive to a designated break area on base. It could take up to 12 minutes roundtrip to drive to the designated break areas.

The court explained that the key factor distinguishing between a rest break and a meal period is the length of time. Normally, 30 minutes is the cut-off. If the break is shorter than thirty minutes it must be paid, breaks longer than 30 minutes may be unpaid. The court also went on to say that an employee typically has to move to a break room or off a sales floor to take lunch. If that time is only a few minutes, it is incidental, and the break may still be unpaid:

A meal break often does not allow for eating during the entire break; some time may be needed to move to another area of the workplace or to leave the workplace. Although office workers are usually free to eat at their desks and thus take full advantage of a thirty-minute break (to the extent one can be on “break” at her desk), employees on the factory floor usually must move to a “break room” before eating due to safety concerns. Or, closer to the situation in this case, retail employees may have to move off the sales floor so customers do not see them munching on a sandwich or slurping soup near the merchandise. To the extent this transition time amounts to no more than a couple of minutes, it is incidental and does not undermine the noncompensable nature of the break. See Henson v. Pulaski Cty. Sheriff Dep’t, 6 F.3d 531, 534 (8th Cir. 1993) (recognizing that the standard for a sufficient meal break is flexible and must accommodate for “the nature of the business involved”).

Typically, when the court looks at a meal break case, they use the “predominant benefit test.” This test looks at “whether the employees are subject to real limitations on their personal freedom which inure to the benefit of the employer, whether restrictions are placed on the employee’s activities during those times . . ., whether the employee remains responsible for substantial work-related duties, and how frequently the time is actually interrupted by work-related duties. The court of appeals held on this point:

“[P]redominant benefit” is typically a fact question on which the employer bears the burden. Bernard, 154 F.3d at 265 (“Whether meal time is predominantly for the benefit of the employer is a question of fact that is ordinarily resolved by the trier of fact after hearing all of the evidence.”); see also Hartsell v. Dr. Pepper Bottling Co. of Tex., 207 F.3d 269, 274 (5th Cir. 2000) (“The `predominant benefits test’ is applied to determine who primarily benefits from the period. This is a question of fact. . . .”); Lee, 937 F.2d at 225 (deferring to the “district court’s fact conclusion that the meal periods are not compensable”). Indeed, the impact of the travel restriction is not the only disputed fact that a jury could find material to the predominant benefit inquiry. We noted above a dispute about the extent to which the guards’ freedom was limited while in the company car. See Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 68-69 (2d Cir. 1997) (finding the meal break compensable partly “[b]ecause [the employer] required all workers to remain on-site” during the meal breaks).

The district court had applied the predominant benefit test in the guards’ case, and determined that since the breaks were for the benefit of the guards, not the company, they could be consider by a jury as unpaid breaks. The Fifth Circuit looked at how much time was available to the employee during the meal break. Because the travel time was up to 12 minutes, there were times where the employee’s actual break was only 18 minutes. An 18 minute break is shorter than the time threshold for a typical meal break. Thus it was up to the jury to decide whether the meal breaks allowed for enough time for the employees to use the break for their own purposes and whether the meal breaks could be unpaid:

At some point, however, employer-mandated transition time becomes substantial enough that it may make the break more like the shorter “rest” period. Consider a situation in which an employee is relieved from a duty station for thirty minutes but spends twenty-five of those minutes in company transportation traveling to and from a break room. Would anyone reasonably contend that the remaining five minutes during which the employee is allowed to eat—hardly enough time to even scarf down a sandwich and take a few gulps of a drink—renders the entire thirty minutes a “bona fide meal break”? Although not as extreme a situation, the ten and twelve minute round-trip drive times at the housing and flightline gates cut into the employee’s eating time enough to raise doubts about whether the entire period qualifies as noncompensable.

The moral of this story? If your employer gives you at least a half hour of time to actually stop working and eat, the boss can shave that time off your pay. However, if the boss puts restrictions on you that cut into your half hour eating time, then you should get paid for the whole enchilada … err your whole time. Sorry, I’m a bit hungry. Time for lunch.

If you believe that your employer is not paying you all of your wages, paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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