During our recent webcast, Do I Have to Pay My Employees for That?, we received close to 300 pay-related questions. Last week, we covered some of the most popular questions on overtime and exempt vs. non-exempt classifications. This week, we cover meal and rest periods, travel time, and after-hours work.

Rest and Meal Periods

Background: The Fair Labor Standards Act (FLSA) doesn’t require employers to provide rest breaks or meal periods (although many states do). However, the FLSA has specific rules for employers that do provide break periods.

Generally, all rest breaks must be paid. The Department of Labor (DOL) defines a rest break as any period lasting 20 minutes or less that the employee is allowed to spend away from work. Meal periods must generally be paid unless they last at least 30 minutes without interruption and the employee is fully relieved of all duties for the purpose of eating a regular meal.

Q: Do I have to pay employees for hourly smoking breaks or can I restrict smoke breaks to our two regularly scheduled 15-minute breaks?

A: You may limit smoking breaks to your two rest breaks. No federal, state, or local law requires employers to provide smoking breaks to employees.

Q: What if an employee clocks out during their lunch break, but continues to answer client calls voluntarily?

A: The time must be paid because the meal period is interrupted and the employee isn’t fully relieved of all duties.

Q: Can employers REQUIRE employees to take a 30-minute or longer lunch break, to help prevent the employee who is inclined to take only 20 minutes and then go back to work?

A: Yes, employers may require employees to take a lunch break of at least 30 minutes. Note: In some states, including California, meal periods must last at least 30 minutes.

Q: Our policy is that our employees receive two paid 15-minute breaks and one 30-minute unpaid break. If an employee takes his/her two 15-minute breaks and then takes a 19-minute break, do all three breaks need to be paid?

A: In general, yes, the employee is entitled to pay for all three breaks. Under the FLSA, rest breaks are generally paid working time if they last 20 minutes or less. The duration of the break is generally the sole factor used when determining whether pay is required, not the reason for the break.

Breaks for Nursing Moms

Background: The FLSA requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child's birth. There is an exception for employers with fewer than 50 employees, but only if it would impose an undue hardship on this business. For these breaks, employers are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Note: Some states have additional requirements concerning lactation breaks. Check your state law to ensure compliance.

Q: For these breaks, does the employee punch out? How long of a break must be provided? How many times per day?

A: In general, under the FLSA, an employer doesn’t need to pay an employee for lactation breaks as long as the employee is fully relieved of their duties during that time. However, if an employee uses her allotted rest break for expressing milk, the time must be considered hours worked and therefore paid. In addition, some state laws may call for compensated break time. The duration of each break will likely vary and breaks must be provided each time an employee requires it.

Q: Does the nursing breaks rule apply to non-exempt employees only?

A: Under the FLSA, employers are only required to provide the breaks to non-exempt employees, but the DOL recommends that employers provide them to exempt employees as well. Keep in mind that your state law may require you to provide these breaks to both non-exempt and exempt employees. Note: Employers are prohibited from making deductions from an exempt employee’s salary for such breaks.

Travel Time

Background: Depending on the circumstances, non-exempt employees may be entitled to pay for time spent traveling. For overnight travel, pay is required for the time that cuts across the employee's regular working hours (regardless of the day of the week):

Q: What is meant by “regular working hours” for determining whether pay is required for overnight travel?

A: These are the hours the employee typically works. For example, if an employee regularly works 9 am to 5 pm, these hours would be considered his or her regular working hours.

Q: What happens if overnight travel takes place on Sunday and the employee usually doesn’t work on Sundays?

A: The day of the week in which the overnight travel occurs is irrelevant. For overnight travel, the question is whether the travel occurs during the employee’s regular work hours. For example, if an employee’s regular working hours are 9 am to 5pm, the employee must be paid for any travel that occurs within those hours on any day of the week.

Q: So if an employee is traveling on Sunday at 6 am, but normally starts work at 8 am, the employee does not get paid for the first two hours?

A: Yes, under the FLSA, pay is not required for overnight travel that occurs outside the regular work hours (in this case, 6 am to 8 am). However, some employers choose to voluntarily pay employees for all the hours spent traveling.

Q: What parts of overnight travel are paid? Is commuting to and from the airport and hotel also included?

A: Assuming all of the overnight travel occurs during the employee’s regular work hours, the employee must be paid for the time spent waiting at the airport, the duration of the flight, and the ride to the hotel. The employee isn’t entitled to pay for the time spent driving to the airport because it is considered normal home-to-work travel (commuting), which isn’t required to be paid under the FLSA.

Q: Does the FLSA allow me to pay employees a lower wage for travel time than for regular working time? For example, can I pay employees a minimum wage for travel time?

A: The FLSA allows employers to establish a separate wage for travel and other "nonproductive" work hours, provided the wage equals or exceeds the applicable minimum wage and the employee has agreed to the separate wage in advance (see 29 CFR 778.318(b)).

Because of the challenges of administering separate wage rates (including calculating overtime), many employers choose to pay employees the same wage for both productive and nonproductive hours. If you wish to establish separate rates, make sure you comply with all applicable laws and obtain a written agreement from the employee.

Early Punch-Ins and After-Hours Work

Q: If an employee’s scheduled start time is 8 am and they show up to work at 7:50 am and clock in, at what time do we start paying them?

A: You must pay non-exempt employees for all the time they actually work. Therefore, if the employee starts working at 7:50, you must pay them for that time. You may not withhold pay even if you have a rule prohibiting employees from punching in early.

Q: If an employee has been told not to take work home and not to answer emails while not at work and they do it anyway, do I still have to pay them?

A: Yes, you must pay them. You must pay non-exempt employees for all hours worked, even if they have violated your policy.

Conclusion:

Keep in mind that the answers above address federal law, but your state or local law may differ. Where federal, state, and local law conflict, the law more generous to the employee typically applies.