Meal Breaks in the Workplace: Food for Thought

If you are an owner or manager of a business, do your employees take lunch breaks? If so, how long are their breaks? Are the breaks paid or unpaid? Massachusetts provides strict protections for employees with respect to meal breaks, as well as harsh penalties for employers who fail to comply. An overview of the Massachusetts meal break requirements is below.

Who must comply, and under what circumstances?

With a few narrow exceptions, the vast majority of Massachusetts employers must comply with M.G.L. ch. 149, § 100, which requires that when an employee works more than 6 hours a day, the employer must provide a 30 minute unpaid meal break . If an employee works a very long shift, she may be entitled to two 30 minute meal breaks.

For example, if an employee works from 8:00 a.m. to 2:00 p.m. (six hours), no break is required. If the employee works from 8:00 a.m. to 7:30 p.m. (11½ hours) and takes a meal break from 12:00 to 12:30 p.m., she would be entitled to a second meal break during the 12:30 to 7:30 p.m. block of time, since this afternoon period exceeds six hours. Alternatively, if the employee worked the same 11½-hour shift, but took her meal break from 1:00 to 1:30 p.m., the law would not require a second meal break, because she would have worked five hours in the morning, and six hours in the afternoon.

Must employees be paid for meal breaks?

Sometimes. The general rule is that meal breaks do not need to be paid. However, where the employee is required to perform work during the meal break, and where the employee’s movement is restricted during the meal break (e.g., the employee is not permitted to leave work if the employee wants to, or the employee is required to stay at her desk to answer the phone, or a teacher is required to supervise students in the lunch room, at the same time being permitted to eat her own lunch), the employee should be paid.

Are shorter breaks, such as coffee breaks or rest periods, mandatory?

There is no legal requirement under Massachusetts law to provide rest breaks or coffee breaks. However, under United States Department of Labor (“DOL”) regulations, applicable to Massachusetts employers, breaks or rest periods of twenty (20) minutes or less, are considered “hours worked” and must be paid. In addition, if the break time is considered hours worked for purposes of an employee’s entitlement to be paid for the break time, the time also counts towards hours worked for purposes of the overtime law.

Can employees voluntarily work through their meal breaks?

While the Attorney General (“AG”) (whose office has enforcement authority over the state law) has stated that an employee may voluntarily waive a meal break, this can be very tricky for the employer. The waiver must absolutely be voluntary, and the employer cannot coerce or pressure the employee into a waiving a meal break. An employer would be wise to have an employee’s waiver reduced to writing; signed by the employee; and put into the employee’s personnel file.

Of course, if the employee waives her meal break, she must be paid for the time. An employer must also keep in mind that an employee can decide, at any time, to revoke her waiver and take her lawfully entitled meal break. If an employee does so, the employer may not try to pressure the employee into changing her mind back again, and waiving the meal break.

If employees are paid and working during their meal breaks, must those hours be counted toward overtime?

Yes. Where an employee works during a meal break, not only is the employee to be paid for the time worked, but the time worked counts towards the overtime threshold. Unless an employee is exempt, where an employee works in excess of 40 hours a week, the employee is entitled to be paid overtime for all hours in excess of 40, at time and a half.

What are the consequences for employers who do not comply?

Historically, the AG’s office has vigorously enforced the meal break law. In 2009, Wal-Mart agreed to pay $40 million to a class of up to 87,500 employees in Massachusetts (current and former) who brought a class action suit in 2001. The suit alleged that Wal-mart denied employees their rest and meal breaks and failed to pay overtime for hours in excess of 40. The settlement is the largest wage and hour class action settlement in Massachusetts history. More recently, the AG’s office settled with The Gymboree Corporation for $463,600.00 for similar violations.

How closely should employers monitor employees’ meal breaks?

A Massachusetts Appeals Court decision recently issued on August 21, 2015, Vitali v. Reit Management & Research, LLC, illustrates the importance of employers monitoring their employees’ meal breaks, and serves as a reminder that employers—not employees—bear the ultimate responsibility for ensuring the accurate recording of employees’ time.

In Vitali, the plaintiff was an employee bookkeeper who worked 9:00 a.m. to 5:00 p.m., five days a week, with a one hour paid lunch break. She claimed that the demands of her job, as well as many other employees’ jobs, required that she work through her lunch break three to four times per week. The employees entered their time through an electronic timekeeping system, but the recordkeeping for lunch breaks was confusing. When she asked the employer how to “mark” the fact that she had been unable to take a lunch break, she was told she did not have to do anything if her total weekly hours did not exceed “45.” The employee brought a class action suit.

The appeals court held that the employer had actual or constructive knowledge that she and her colleagues were working through lunch, and noted that it is the responsibility of employers, not employees, to insure that employee timesheets accurately reflected all hours worked. In other words, an employer cannot avoid liability by hiding behind its employees’ timesheets. In this particular case, the court found that the practice of employees working through lunch had become so pervasive that the company had sent out reminders to employees letting them know that they were supposed to take at least a one-half hour lunch break.

The appeals court sent the case back to the trial court for trial. Unless settled, the trial will determine how many overtime hours were worked by those who are members of the class. Subsequently, damages will be awarded accordingly. In this case, because the employer had paid its employees for the lunch breaks, its liability will be limited to one half the hourly rate of pay for those hours exceeding 40 that were worked by the employees during their lunch.

However, because the failure to pay overtime is a wage claim under Massachusetts law, the employee will also be entitled to mandatory treble damages and mandatory attorney’s fees. These amounts can add up.

MARY E. (BETH) O’NEAL

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KATHLEEN O’TOOLE

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