Ever heard the saying, “there is no such thing as a free lunch?” If you are an employer covered by the Tennessee Prevailing Wage Act, there better be free lunches . . . well, free from work at least. Although the Fair Labor Standards Act, the federal law governing wage and hour requirements in the workplace, does not require employers to grant breaks during the workday (except as it pertains to minors and lactation breaks), where such rest or meal periods are provided, certain obligations arise. For instance, under the FLSA, any break offered to employees that lasts five (5) to twenty (20) minutes is considered compensable time. However, bona fide meal breaks, that is, meal breaks lasting at least thirty (30) minutes, may go unpaid, so long as the employee is completely relieved from duty. If an employee performs any work during his or her bona fide meal break, then the break is considered working time and is compensable.

Tennessee law, meanwhile, imposes more strict wage and hour requirements on employers within the state. Specifically, the Tennessee Wage Regulation Act, Tenn. Code Ann. § 50-2-103(h), requires that each employee scheduled to work six (6) consecutive hours must have a thirty (30) minute meal or rest period, except in workplace environments that by their nature provides for ample opportunity to rest or take an appropriate break. This mandatory thirty (30) minute meal or rest period cannot be scheduled during or before the first hour of scheduled work activity. An employer’s failure to provide a meal or rest period as dictated by the FLSA and TPWA will expose the employer to varying damages and/or civil penalties. More on these damages next week.  For now, let’s focus on compliance issues.

While the concept of rest and meal periods seems straightforward, but it is a common source of questions from employers. Rightfully so, as between state and federal law, Tennessee employers have numerous regulations to navigate. To demonstrate the complexity of these rules, imagine a scenario in which an employee is permitted a thirty (30) minute unpaid lunch break, as required by Tennessee law. The employee asks her supervisor if she can take a fifteen (15) minute lunch break instead and then leave fifteen (15) minutes early to go home from work. Should the employer pay the employee for the fifteen (15) minute break in this instance? Yes. Even an accommodation of an employee’s request may run afoul of wage and hours laws. This is especially true in Tennessee, where the law prohibits employees from waiving the mandatory meal period, except by certain employees in the food and beverage industry.

Similar compliance issues arise where employees take their meal breaks at their desk, which may tempt them to occasionally answer emails or the telephone. Although the FLSA regulations permit de minimis work without infringing upon the FLSA, whether work is de minimis is determined in the aggregate, i.e., by looking at the activities over the course of time. Thus, an employee checking email for two minutes everyday may have spent quite a bit of time, over the years, working during her lunch break. This is time for which an employer may be held liable for underpayment of hourly wages or overtime.

Wage and hour laws are notoriously tricky. Compliance is best accomplished by working in connection with a skilled attorney to ensure your business is prepared to prevent and respond to wage and hour complaints. My initial advice to businesses includes recommending that a company establish a sound “rest and meal period” policy within its Employee Handbook, explaining the number and length of breaks permitted in a workday. The policy should make it clear that, for bona fide meal breaks, the employee is not to engage in any form of work. If the employee does engage in work, then he or she should be directed to notify his or her supervisor immediately to ensure proper compensation is received. The policy should warn that significant consequences, up to and including termination, will be levied on employees who fail to abide by its provisions. Such hefty consequences dissuade employees from working through breaks without permission and thereby, limits an employer’s exposure to legitimate, but inadvertent, violations of federal and state wage and hour law.

For questions on how to prepare a proper rest and meal period policy for your business, contact me. In addition to drafting appropriate policies, our office frequently trains business personnel on the appropriate implementation of and response to wage and hours issues arising within the workplace.