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D. Breaks

Breaks are a common source of confusion for employers. As noted elsewhere in this book, with only one exception (see below), neither the FLSA nor Texas law requires employers to give breaks during the workday, but if breaks are given, certain rules apply under federal law, and employers can impose their own conditions on the use of break time. Some cities in Texas may have their own ordinances on breaks, such as Austin, which in 2010 began to require at least one ten-minute break per four-hour shift for construction workers in that city.

Rest or coffee breaks, defined as 20 minutes or less, are compensable hours worked under 29 C.F.R. 785.18, since they are regarded as being for the benefit of both the employer and the employee. Smoking breaks are not required under Texas or federal law, but if a company allows such breaks, they count as rest breaks. Companies can adopt whatever policies they want to regarding smoking breaks. No matter how many rest/coffee/smoking breaks an employees takes, they are compensable, even if the employee took more breaks than allowed. Meal breaks, on the other hand, are not compensable, as long as they are at least 30 minutes in length and the employee is "completely relieved from duty for the purpose of eating a regular meal" (see 29 C.F.R. 785.19). Shorter meal breaks may be considered valid under special circumstances. Such breaks are a matter of company policy. Since they are optional, an employer can allow meal breaks, or not. If meal breaks are allowed, the employer can impose conditions on them, such as when they occur, how long they are, where they may or may not be taken, and whether any particular consumables are disallowed (such as alcoholic beverages). The most frequent pitfall for employers is thinking that employees have true meal breaks if they are allowed to eat at their desks while answering phones, opening mail, sorting files, and so on. Such duties performed while trying to eat will render the time spent during the meal break compensable. While employers should not insist that an employee actually eat something during a meal break, they may prohibit any kind of work during such time and may require employees to leave their desks or work stations during the allotted meal break times. Employers may control unauthorized work during meal breaks, or excessive or unauthorized breaks, by the disciplinary process.

Only one type of break is actually required under the law. Under the 2010 health care reform law, the FLSA now requires employers to allow reasonable break times for a nursing mother for the purpose of expressing breast milk for her baby during the first year following the birth of the child. Presumably, the same law would allow the mother to nurse her child if employees' children are allowed in the workplace. The law applies only to non-exempt employees, i.e., those who are entitled to overtime pay if they work overtime, and it exempts employers with fewer than 50 employees if to provide such breaks would be an undue hardship for the business. Such breaks do not have to be paid. DOL will need to adopt regulations defining what is meant by "reasonable" in terms of break time. For more information, see "Nursing Mothers" in this book.

Violations of any kind of break policy should be handled just like any other rule violation in terms of corrective action.

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