What Can Happen if You Don’t Give Your Employees Meal and Rest Breaks?

How much are employees’ meal and rest breaks worth?

Oh — and also, could a lack of meal and rest breaks be a symptom of a bigger problem?

Wait. Are these trick questions? No, I promise.

If your employees work in a state that requires meal and rest breaks and if you don’t either: a) provide them or b) pay for breaks not given, then…you will likely pay a few times over at some point. Yes, I do have a real-life case in mind, so let’s jump into it…

If you’re Home Depot the employer-on-the-hot seat in this case, you might pay as much as $5.8m to settle a claim by workers across multiple locations. Here, in a nutshell, is what went down:

At least 10,000 workers at 45 different Home Depot locations in Washington State filed suit in September 2021, alleging that Home Depot, in violation of state wage and hour laws, did not provide required meal and rest breaks. WA wage and hour laws specifically require 30-minute meal breaks between the 2nd and 5th hours of a shift, and 10-minute rest breaks every 4 hours

Apparently, at least some employees not only didn’t receive their breaks but they also weren’t paid for the time they worked through their breaks. At the very least then, you’re supposed to be paying your employees for that time when they should have had the break and were instead working. So if you’re not giving your employees their break time and not paying them, that alone is wage theft if the employee (or the job) is non-exempt.

What does the term non-exempt mean? It means that the job is one that is subject to, or not exempt from minimum wage and overtime requirements. Employees in non-exempt jobs MUST be paid for ALL time worked. As a result of Home Depot’s practices many of the employees, in this case, worked more than 40 hours in a given week (or, both) and didn’t receive overtime pay.

Since there is no mention of any failure to pay the minimum wage, I’m assuming that Home Depot got that piece right. I’m mentioning this point anyway to bring to your attention that minimum wage can vary from state to state. The federal minimum wage, or as I often refer to it, the “default” minimum wage, is $7.25 an hour. In other words, if the state in which the employee works does not set its own higher minimum wage, then the minimum wage you will owe that employee defaults to $7.25 an hour. When the employee works in a state that does set its own higher minimum wage though, you must pay the employee that rate – or more. The minimum wage in Washington State is $15.74 an hour. In some states, an employee might work fewer than 40 hours a week and still be entitled to overtime pay (California being a prime example).

OK, let’s return to our case. Why weren’t these employees given their breaks? We can guess some reasons. Here are two likely ones: 1. They didn’t want any employees not working every minute of their shift; and 2. They didn’t want to pay overtime.

But here’s another one alleged by the employees in their complaint– which I believe points to a bigger problem:

Home Depot intentionally and chronically understaffed its stores.

As big a deal as wage and hour laws are, this to me is an even bigger-picture issue. Yes, it’s still in all likelihood about money. It’s also about a certain mentality: Get the most while giving the least.

That mentality will likely cause significant legal issues — as it did here–as well as business issues.

To all employers lamenting the seeming (and in some cases actual) lack of employee loyalty, consider whether your overall employee practices are modeling the behavior you want from your employees.

If you want loyalty and if you want to avoid lawsuits, or audits triggered by disgruntled employees who make anonymous complaints to federal and state agencies, take a good look at your practices.

Ask yourself if you were the employee in the same scenario, would you feel valued — or at least like you were being treated fairly.

Besides, if you ultimately don’t have enough employees to service your customers how do you then expect to hold onto let alone generate new business?

It’s in your interest to ask those questions and answer them honestly — unless you don’t mind costly lawsuits and audits, high turnover, or even difficulty finding decent employees in the first place.

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.theemplawyerologist.com to contact me for a complimentary 20-minute consultation. 


Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ


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