Ever play the game telephone? It’s a game in which one person whispers something into the ear of the next person, and that person is supposed to whisper the same thing into the ear of the next person, and so on. When the group gets to the last person, he or she is supposed to tell the group what was said. Invariably, the final statement is completely different from the initial one. The same thing often happens with respect to people’s understanding of the law – specifically workplace or employment law.
This blog series is meant to address some of the common misconceptions about employment law that float around, and correct any misunderstandings. For the most part, there’s nothing very new about the issues in this series. However, most employment lawyers have heard friends in casual conversation or clients make inaccurate statements about employment law. These misunderstandings can often lead clients into trouble.
You can read the other myths in the series here.
Employment Myth #3: “The law requires that an employer give two fifteen minute breaks every workday.”
There is no federal or Virginia statute that requires an employer to provide its employees a fifteen-minute break in the morning and the afternoon. (Note, however, that a collective bargaining agreement may provide for such breaks.)
The Fair Labor Standards Act (FLSA) does have a regulation concerning rest periods. 29 C.F.R. §785.18 states that “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.”
While you do not have to provide such breaks, it might make sense to do so from an employee relations perspective. If you do allow breaks, those short breaks of 5 to 20 minutes have to be compensated. You cannot make employees clock out for them. In order to ensure that such breaks do not become extended, supervisors have to be vigilant. But what if an employee does extend a break past the allotted time? In that situation, Fact Sheet #22 on the Department of Labor website says the following:
Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.
In other words, have a policy and make sure your employees receive it and acknowledge their understanding of it. Issues like break times are yet another reason personnel policy handbooks are an invaluable asset in managing your workforce and complying with the FLSA and other applicable laws.