Many American workers and employers are so accustomed to breaks during a work shift that they do not know when or whether a break is actually required. Contrary to popular belief, there is no federal law that grants employees a right to a break from work. Any break requirements that may exist come from the state. New Jersey, for example, has no law regarding breaks for workers, but New York has a complex system for entitling employees to unpaid lunch breaks.
New York meal and rest laws are governed by New York Labor Law §162. To qualify for an unpaid break, a work shift must last longer than six hours. Subject to the exceptions below, breaks must be offered to employees as follows:
- Employees are entitled to receive a 30-minute unpaid meal period between 11 a.m. and 2 p.m. if the shift covers that period. Factory workers (those that work in or in connection with a factory, mill, or manufacturing establishment) are entitled to 60 minutes.
- Employees are entitled to receive a 45-minute unpaid meal period halfway through their shift if the shift begins between 1 p.m. and 6 a.m. Factory workers are entitled to 60 minutes.
- Employees are entitled to an additional 20-minute break between 5 p.m. and 7 p.m. if their work shift begins before 11 a.m. and ends after 7 p.m.
Employers may provide paid breaks between 5 and 20 minutes in length, but may not use these breaks to offset the required time to be granted for statutory meal periods. Employers must count these periods as time worked, unless the employee has extended the break to an unauthorized length, specifically forbidden by the employer’s policies.
The New York Department of Labor grants exceptions in special situations. If there is no hardship to employees, an employer may grant only 30-minute breaks. Employers required to offer a 45-minute dinner break could therefore grant only 30 minutes with the consent of the employees. No meal period can be cut shorter than 20 minutes without a permit from the State.
Collective bargaining agreements may allow employees to exchange their required meal periods for another benefit. Employees subject to the agreement must make their waiver free of duress and with full understanding of the rights that are being revoked. These waivers may only be made if the needs of the employer’s industry make meal periods impractical.
While on a meal break, employees may not be required to perform any job duties. Time spent performing any such duties must be paid for. Although employers may keep employees on the premises during breaks, employees who are put “on call” may not be considered relieved of job duties. An employee may consent to paid meal periods during which he or she must continue their job duties if he or she is the only employee on duty for the shift. Consent should be in writing, and is not given merely by commencing or continuing employment.
It is possible for an individual employee to exchange a meal period for a shortened work day. The Department of Labor forbids this from occurring on a regular basis, but the bargain may be made on occasion, and only to accommodate the needs of the employee. Employees may not otherwise waive a break period.
Aside from the above exceptions, no other employees, including managers on salary, are exempt from the New York’s break laws. Due to the complexity of the laws, employers should exercise caution when administering breaks and meal periods, paying particular attention to employees working more than six consecutive hours.