When Two 20-minute Unpaid Breaks Don’t Add Up to 30 Minutes

Most Tennessee employers know that Tennessee Code Annotated § 50-2-103(h) requires them to provide employees who work six hours consecutively with a 30 minute unpaid rest or meal break. Last week, the Tennessee Attorney General addressed whether an employer complied with this requirement by providing two 20-minute unpaid breaks that the employees could take however they wish. The answer was "no" but there were qualifications.

Tenn. Code Ann. § 50-2-103(h) provides:

Each employee must have a thirty (30) minute unpaid rest break or meal period if scheduled to work six (6) hours consecutively, except in workplace environments that by their nature of business provide for ample opportunity to rest or take an appropriate break. Such break shall not be scheduled during or before the first hour of scheduled work activity.

A violation of this provision could subject the employer to a criminal prosecution (for a Class B misdemeanor) or a civil penalty from the Tennessee department of labor. So far, there is no definitive ruling on whether employees could sue privately for an alleged violation.

The attorney general's opinion said permitting two 20-minute breaks during the day would not comply with the statute because the statute requires at least one 30-minute unpaid break. The opinion also said, however, that the 20-minute breaks may let the employer fall within the "ample opportunity to rest or take an appropriate break" exception but that would depend on the specific facts.

The paragraph on the exception seems to muddy the waters. The statute provides that the exception applies when the "workplace environment" when the "nature of business" provides ample opportunity for work. If the AG is going to interpret the statute literally when it says "30 minutes" as if it read 30 consecutive minutes then it is somewhat inconsistent to say that breaks might be part of the nature of the business workplace environment.

As a practical matter, the opinion could result in employees receiving fewer or shorter unpaid breaks. If employees must have 30-minute consecutive breaks when working six consecutive hours this opinion means that the "six consecutive hours" necessarily includes work schedules where the employer provides 20 minute breaks.

Most employers know that under the Fair Labor Standards Act regulations, a 20 minute rest break is the minimum amount of time that can be given to employees without having to pay them for the entire break. And to be clear, Tennessee employers only have to provide one 30-minute unpaid break per shift. Nothing in federal or Tennessee law says employees must get even one 20-minute break and a 30-minute lunch break. But of course, nothing prohibits a Tennessee employer from providing additional unpaid breaks during the day.

The danger with unpaid breaks isn't that the Tennessee district attorney generals have their white collar crime unit out looking for employers to prosecute under § 50-2-103(h). Nor is it ordinary for the state DOL to impose a civil penalty for a violation. The real issue that arises in litigation is when employers impose unpaid breaks without adequately documenting that employees are not working (and making sure employees are not working for the DOL meal period regulationsrequire the employee be "completely relieved from duty" if the break is unpaid).

Unfortunately, it is quite easy for an employee to allege they were forced to take unpaid breaks but still expected to work. (Some employers make this allegation even easier by always complying with the regulatory requirements.) Wal-Mart recently which included allegations of employees being expected to work through unpaid breaks and in California, lawsuits of this nature are a dime a dozen.

To bring the issue closer to home, the Memphis Commercial Appeal reports that Baptist Memorial Hospital there is defending a collective action lawsuit under the FLSA brought by employees who claim the Hospital unfairly deducted half-hour meal breaks from their paychecks even if the employee worked through the meals. The deduction was automatic unless employees filled out an exception log.

So, if you want to provide unpaid meal breaks, you can do so. They must be a minimum of 30-minutes; two 20-minute breaks aren't enough. And make sure, whatever you do, you keep accurate records and do not ever let employees to perform anything more than de minimus tasks during the unpaid break. (I promise to write more on the de minimus issue later as it is a greatly misunderstood rule.)