by Jodi R. Bohr

Question: For nonexempt, hourly employees who don’t have access to the time clock during the day (they’re delivery drivers), how should we handle their meal breaks? Can we automatically deduct 30 minutes from their hours?

Answer: Neither federal law nor Arizona law requires employers to provide employees with a meal period or rest breaks. Employers outside of the State of Arizona should consult with their own state’s laws regarding meal periods or rest breaks. The U.S. Department of Labor (DOL), the agency for enforcing federal wage and hour laws, has a handy chart on state meal periods requirement at https://www.dol.gov/agencies/whd/state/meal-breaks.

While breaks aren’t required, once an employer opts to offer a meal period or rest breaks, employers must follow guidance from the DOL to ensure employees are being paid for all hours worked. The DOL has made clear that short breaks of 20 minutes or less are compensable hours worked. Off duty periods that are longer than 20 minutes (i.e., meal periods in which an employee is completely relieved from work) may be excluded from hours worked under the Fair Labor Standards Act (FLSA). To be completely relieved from work, the employee must be told in advance that he may leave the job and that he won’t have to commence work until a specified time more than 20 minutes later.

Because breaks shorter than 20 minutes or breaks in which the employee is not completely relieved of duty are hours worked, employees must be paid for those breaks.

Automatically deducting 30 minutes a day from an employee’s hours when the employer is unaware that the employee actually took a lunch break that is not compensable could open the employer up to liability. Employees may later claim that they were not completely relieved from duty and are owed the 2.5 hours per week (likely in the form of overtime wages) that had been wrongfully deducted.

Luckily there are other options than automatically deducting meal breaks. One option would be to have the employees track their meal periods and accurately log them on a timecard. Or have the employees use one of the readily available time tracking apps, which can be downloaded to their phones. Time tracking apps have different features (GPS, notifications, or alerts to reduce errors), so research which one works best to use for your company.  

Jodi R. Bohr is a shareholder with Tiffany & Bosco, P.A., and a contributor to Arizona Employment Law Letter. She practices employment and labor law with an emphasis on counseling employers on HR matters, litigation, and workplace investigations. You can reach her at jrb@tblaw.com or 602-255-6082.