Duty-Free Meal Period

Steven Cesare, Ph.D.

A business owner from Florida called me the other day to talk about multiple timekeeping issues including drive time, overtime, and meal periods. During our conversation, the owner described the standard meal period process which usually involved a work crew stopping their work at around noon, driving to a fast-food restaurant in a company vehicle to get something to eat, returning to the job site to finish eating their meal, and then resuming work at approximately 12:30 p.m.

First, it is important to note that the Fair Labor Standards Act does not require employers to provide meal periods or rest breaks to employees. Rather, the individual states determine their own unique standards for non-exempt employee meal periods and rest breaks. To the point at hand, the state of Florida places only mild restrictions on employers’ meal period policies.

In general, meal periods are usually more than 20 minutes long, requiring employees to be relieved of all work responsibilities (i.e., “duty-free”). If those criteria are met, the meal period represents unpaid time.

The issue with the Florida business owner is that she told me that her non-exempt employees typically drive a company vehicle to the fast-food restaurant for lunch and that she does not pay them for that time since they are not “working.” Technically, while they are not “working,” the non-exempt employees are still under the control of the company since they are in a company vehicle. The general rule is that non-exempt employees must be paid for all time they are under the employer’s control.

To be unpaid time, non-exempt employees must be relieved of all work responsibilities, beyond all employer control, thereby enabling them to act on their own accord (e.g., cell phone use, smoking, exercise, eating, listening to music). That defines a “duty-free” meal period which does not require paid time.

Even though the employer is not forcing the employees to go the fast-food restaurant, simply by them being in a company vehicle places them under employer control. For example, if the company vehicle gets into an accident with several employees being injured, by the very nature of them being in a company vehicle the company may likely be partially responsible for those injuries. By way of contrast, if the same employees took an Uber or an employee’s personal vehicle to the fast-food restaurant and got into an accident, the company would not likely be held responsible.

As I explained to the Florida owner, if the employees stopped working at noon, and drove 15 minutes to the fast-food restaurant in a company vehicle, the employees must be paid for those 15 minutes, which may impact weekly overtime pay.

Likewise, to be legally conservative, I recommended that the owner institute a payroll policy of requiring each non-exempt employee (e.g., field as well as office employees) to document the beginning time and end time of their daily meal periods on their timesheets. Failure to track this daily meal period can lead to a “working off the clock” violation that can be very costly. Furthermore, I recommended that the owner add the following language to the Meal Period Policy in the Employee Handbook: “It is important to note that the meal period begins when the employee stops working, not when he/she begins to eat.”

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