Part Four in a Five Part Series originally posted in the Rockland County Business Journal on December 4, 2019
Most employers (hopefully) know that New York requires employers to give meal periods to employees working 6 hours or more – but, did you know there are specific times of day during which meal periods must be taken? Did you also know employees cannot opt out of their meal period? That’s right, even if an employee protests having to take their lunch break, they have to take it. Here’s what you need to know:
Meal Period Requirements
The requirements for employee meal periods are outlined in §162 of the New York Labor Law, and apply to public and private employers alike. However, the law differentiates between factory workers and non-factory workers. The chart below lays out the meal period requirements for different types of workers.
| Type of Work | Time of Work | Meal Allowance |
| In connection with a factory | Any shift, covering 11am to 2pm Any shift +6 hours, Between 1pm and 6am | 60 minutes, between 11am and 2pm 60 minutes, midway through shift |
| Non-factory workers | Any shift +6 hours,covering 11am to 2pm Any shift starting before 11am and ending after 7pm Any shift +6 hours, Between 1pm and 6am | 30 minutes, between 11am and 2pm Additional 20 minutes, between 5pm and 7pm 45 minutes, midway through shift |
Employees must be completely relieved of their duties during their lunch/meal periods. For example, if you ask an employee to watch the front door during their lunch – even if no one uses the door – they are not completely relieved of their duties. Legally required meal periods are not considered “hours worked” and employees are not required to be paid for such time – assuming the employees are completely free from work. Employees may choose to remain at their desk or in their work area during a meal period as long as they are not working. Generally, employees who are required to remain at their desk or work area during meal periods are not considered to be completely relieved of their duties.
As you can see in the chart above, the law is very specific as to the hours during which a meal break must be taken. Employees also cannot waive their meal period. Sometimes, an employee may request to leave work early instead of taking their required meal break during the period outlined above. Is this allowed? The Department of Labor says this is permissible – assuming both the employee and employer agree to the arrangement, and it only happens occasionally and not on a long term or regular basis.
In some instances where only one person is on duty or is the only one in a specific occupation, it is customary for the employee to eat on the job without being relieved. The Department of Labor calls this the “One-Employee Shift” exception. In order to qualify, an employee must voluntarily consent to the arrangement. To prove voluntary consent, an employer must explain to the employee that the nature of the industry in which the employer operates necessitates one-employee shifts and the employee’s meal periods may be interrupted as a result. The employee must consent, in writing, either at the time of hire or before the time the employee might be expected to give up his or her uninterrupted meal periods. Note, however, if an employee works any part of a meal period due to one-employee shift requirements, the employee must be paid for the meal period.
Short Breaks
Occasionally, employers may allow also allow employees to take short breaks. These breaks are not legally required to be given – with the exception of bathroom breaks, which must be provided under federal law. However, if an employer does decide to work a short break or two into an employee’s work day, the employer must continue paying the employee for time spent “on break.” Breaks of short duration such as this are considered “working hours.”
The Take Away
Employers should review their workplace policies and procedures to ensure they are giving proper meal periods to their employees. Make sure your supervisors know employees must take their lunch breaks and must be relieved of all duties during that time, unless the One-Employee Shift exception applies. Remember, providing employees with breaks and meal periods is a best practice; well rested employees are happier and more productive. Not to mention – oh yeah – a violation of New York Labor Law can result in steep fines and penalties!
