NC Break Laws
North Carolina has not adopted any state-specific labor laws concerning breaks. Instead, this issue is controlled by the federal Fair Labor Standards Act ("FLSA"). The FLSA governs many issues concerning overtime and minimum wages as well.
In general, in North Carolina, employers have discretion concerning whether or not they provide breaks and what kind of meals and rest periods are provided to employees. However, if the employer does choose to offer breaks, then those breaks must be paid and of a certain length in order to avoid liability under the FLSA. Specifically, breaks that last 5 – 20 minutes in length must be paid, whereas breaks that are less than 5 minutes do not have to be paid. Further, breaks that last 30 minutes or longer are automatically considered an unpaid meal period under the FLSA, and thus may be unpaid . If the employer has a policy of providing breaks, even unpaid, then often the employees must clock in and out, and the employers can deduct the time. But, if employees work through their break, the employer will get the additional time credited to the employee’s time worked.
The only real difference between North Carolina break laws concerning rest and meal periods and federal law is that these areas are subject to state regulation under the North Carolina Wage and Hour Act ("NCWHA"). Thus, if an employer provided a paid 20-minute break, they would be in compliance with federal law, but in violation of state law if they did not also provide the same break to all of their non-exempt employees.
Break Requirements for Adults
Under federal law, meal breaks of 30 minutes or more that are not used for work purposes may not be counted as hours worked. Whether a break or meal period is "used for a work purpose" is generally a question of fact to be determined on the circumstances particular to each employee. There is, however, at least one situation that is clear: if an employee is prohibited from leaving her work area while on meal break, then the break is considered "used for a work purpose" and must be counted as time worked.
There is no requirement under federal law that employers provide meal or rest periods of any length to employees. North Carolina law goes a step further, in a sense, and actually prohibits employers from grouping employees on meal or rest periods. In any employment which gives rise to a state minimum wage or overtime pay obligation, employers must allow all non-exempt employees an unpaid meal period of at least 30 minutes after five (5) hours of work in each work period, but must not require the employee to remain on duty at the employee’s place of employment. Employers may schedule meal periods, but are not permitted to group employees so as to avoid the requirement that each employee be given his or her own 30 minute unpaid meal period. Thus, as a best practice, it appears that all adult employees must be allowed to take an unmeasured, 30 minute break after working at least five hours, unless otherwise exempted.
The North Carolina meal and break requirement does not apply to the following:
- (1) An executive, administrative, or professional employee as defined by 13 NCAC 12 .0401, without regard to salary level. This basically includes employees who meet the federal salary basis test, and are identified as executive, administrative, or professional under 13 NCAC 12 .0402 through 05;
- (2) A "highly compensated employee" as defined by the FLSA [(29 U.S.C. § 207(k); 29 C.F.R. § 541.601](generally those earning at least $107,432); or
- (3) The chief executive officer, president, administrator, or any officers corresponding to named offices of the employing enterprise or establishment, or any employee regarded as having substantially equivalent status.
Break Laws for Minors
The laws governing breaks under the Wage and Hour Act for minors and adults in North Carolina differ considerably. For example, while adults may be required to take unpaid breaks at the employer’s discretion, minors are governed by different laws which require both that they be given a 30 minute meal period if they work more than five hours and that minors working more than five consecutive hours must be given additional breaks:
18 NCAC 02 .1106 – Break Periods for Minors
(a) Minors under the age of 16 and 16 and 17 years of age employed for five (5) or more consecutive hours shall be allowed a 30 minute break.
(b) In addition to the 30 minute break provided in (a) of this Rule, minors under the age of 16 and 16 and 17 years of age employed for five (5) or more consecutive hours shall be allowed a 15 minute paid rest break for each three (3) hours of work.
18 Years of age or older, on the other hand, will not be given a 15 minute break unless required to do so by the employer:
18 NCAC 02 .1110 – Break Time for Rest and Meals
(b) Employers may not be required to provide paid break time for rest; provided, however, if employers do so, that time must be compensated at the regular rate.
Employer Obligations and Prohibitions
Employers of North Carolina employees are required by law to provide breaks. Federal law is OK with exemptions, but NC law is not.
1. Bring me a break
The Department of Labor Wage & Hour Division ("DOL") states that under North Carolina’s "Break Law," a 30-minute meal period is required when (i) employees are working seven and a half hours or more per workday and (ii) employees meet the statute’s definition of "workers employed in the manufacture of goods." This statute encompasses a diverse range of occupations including those who assist in, or supervise, the manufacture of goods. Unless the employers can prove an exemption applies, then they must be prepared to provide a daily 30-minute meal period to eligible employees.
The DOL explains that the purpose of the Break Law "is to ensure that employees are afforded adequate relief while working in potentially hazardous fields where a lack of nourishment and refreshment can result in impairment of an employee’s mental or physical capacity." The 30-minute daily meal period is in addition to any other State or federal laws regarding breaks, such as those issued by the U.S. Department of Labor ("DOL"), for breaks and meals.
2. Metering breaks
In furtherance of the law, the Break Law requires that certain records be kept under the supervision of the Employer. Specifically, the law requires records of the name, age, number of hours worked, and the date of the break period. The Wage & Hour Bureau of the NC Department of Labor is permitted to examine the records that were kept under supervision.
3. Exemptions to the Break Law
Exemptions to the 30-minute meal period include employees whose normal hours of work do not require them to work seven and a half hours per day; those who are employed in an executive, administrative, or professional capacity; those who are employed in an outside sales capacity; and those who are employed in an outside laundering or dry-cleaning capacity.
4. Break upon request only
Some employers have adopted a company-wide policy that requires employees to request a break, but the Break Law, in contrast, does not expressly condition an employee’s entitlement to a meal or break period on the employee’s request. Under federal law, employers "are not generally required to give any breaks at all, with the exception of 15-minute rest periods for employees under the age of 16 when permitted to work after 7 PM or more than 5 hours at a time." North Carolina differs from federal law by requiring a 30-minute meal period for certain employees "where the nature of the work and the strain and exhaustion occasioned by it require such intermission for the moral and physical well being of such person employed." North Carolina law treats this differences as the minimum requirements for meal and break periods. Thus, the DOL should interpret the employee’s request to have a mandated break period as being mandatory regardless.
5. Consequences for not providing mandatory breaks
The DOL will evaluate the circumstances on a case-by-case basis, including the nature of the work and location. Assessing all of the circumstances, the DOL determines whether the employee detrimentally affected by the not receiving the prescribed 30-minute meal period and has suffered an injury as a result. If the employee was not injured or harmed, then no violation exists. If violations exist, then the employer may be ordered to pay premiums such as overtime and minimum wage.
Penalties for Violation
Employment lawyers are often consulted by employees who are angry at their employer and who may want to file a lawsuit against their employer. But as we know, not all lawsuits against employers are meritorious, but the potential of a lawsuit forces employers to consider what the ramifications may be if they are found non-compliant with the law, in this instance, compliance with NC labor laws on breaks. Employers must also keep in mind that angry employees can damage employers from a business perspective as well (e.g., bad-mouthing the business to customers/clients, texting disparaging remarks about management or the business on social media, etc.). So, it is always in an employer’s best interests to treat employees fairly and to follow the law. For more information on how to handle an angry employee , see our past blog post entitled "It’s a Small World After All: How to Handle an Employee Who Disparages the Company on Facebook."
So what happens if an employer does not comply with NC labor laws on breaks? One possibility is that an employee may file a complaint with the NC Department of Labor ("NCDOL"). The NCDOL would have authority to issue a citation, and it could, in theory, result in the payment of back wages to employees.
Beyond filing a complaint with the NCDOL, however, nothing else will happen until the employee files a lawsuit. That’s right. Even if an employee does file a lawsuit against you for violating NC labor laws on breaks, you will not face any fines or other punishments. You may, however, have to pay damages, attorneys’ fees, and litigation costs if the employee prevails in the lawsuit. To avoid any unwanted business ramifications and/or liabilities to employees, employers must ensure compliance with NC labor laws on breaks and rest periods.
Rights and Options for Employees
Employees have rights under the North Carolina break laws, and the federal regulations of the Fair Labor Standards Act. Both the federal and state laws require employers to allow employees to take breaks for short periods of time. Employees have the right to take these breaks without penalty or punishment from their employer.
If an employee feels that his rights under the break laws have been violated, the employee can seek unpaid wages from the employer through the North Carolina Department of Labor. Also, an employee could make a claim for unpaid wages in North Carolina state court for any missed breaks, and seek the wages that were due.
In the event that the employee is terminated or has been constructively dismissed from his or her job, the employee might be able to take action for wrongful discharge if the employee had been forced to work through legally required meal periods. If the employee is a private employee, he can bring a claim in court against the employer for wrongful discharge. Public employees have a right to bring an employment claim under federal or state law against their employers as well.
The employee might also have a claim if he or she suffered some sort of discrimination or harassment by the employer as a result of their having taken legally required meal breaks, if such harassment or discrimination occurred after an incident of mistreatment for taking a break. If the employer made a new policy to terminate employees or discipline them for taking breaks, the employee might be able to bring a claim for constructive discharge, and much more serious claims for discrimination, if such a policy existed. Employees may not be able to bring wrongful discharge claims, and Nightlinger v. Eighth District Judicial Dist. Att’y’s Office, __ N.C. App. __ (2008) held that where an employee has a remedy under N.C. Gen. Stat. § 95-25.22(a)(2) for wages owed for missed meal periods, he is barred from bringing a claim for wrongful discharge as a public employee.
Recent Policy Changes and Future Trends
While a widespread bill to require payment for breaks has not passed the legislature, other changes to labor and employment law – including the adoption of a new minimum wage – render the current treatment of on-the-clock breaks particularly confusing. And in a world of smart phone and apps, other issues of intermittent and on-call work further complicate the picture.
In 2016, the North Carolina legislature did address meal periods, and its law specifically provides that "[a]n employer shall permit employees to take rest and meal periods as agreed upon between the employer and the employee." NC General Statutes, Sec. 95-25.16(b). The statute regulates only the required agreement – it does not establish a requirement. Currently the standard for meal periods and breaks under Federal law applies as well, under the Fair Labor Standards Act. 29 U.S.C. § 203. Businesses in North Carolina should continue to look to the guidance from the Department of Labor on this issue to ensure compliance.
A proposed raised minimum wage that passed the legislature in 2016 but was vetoed by the Governor was reintroduced in March 2017 and has not yet been voted on.
It is unclear whether a raise to North Carolina’s minimum wage would affect the treatment of breaks. In the event that the minimum wage were increased, it is likely that the agreement requirement referenced above would continue to remain.
Perhaps the biggest change in the last year has been the implementation of the EEOC’s final rules on incentive-based compensation, which were designed to ensure that companies no longer discriminate on the basis of sex . The EEOC addressed the issue in a webinar, where they set out several examples of illegal pay discrimination. On the question of break times, the EEOC discussed how employers are liable for requiring workers to make "hazardous" trips to pumping stations to collect paychecks in the dark of night.
Not surprisingly, this has raised the issue of non-traditional pay periods, but even very traditional ones such as the bi-weekly pay period caused some confusion. Those issues also touch directly on the issue of break time. An employer cannot reduce the amount a worker is paid within a pay period for the time he or she was taking a rest or meal period. While the EEOC did not address wrap up time, employers with wrap up time should think carefully about the scenarios in which their employment policies allow for time to be deducted from regular pay, and examine whether those scenarios could be construed as making an employee "work" at a discount rate.
And lastly, the concept of "on-call" time has grown in the workplace. On-Call time generally refers to any period in which an employee can be called in to work on short notice. For many employers, the question of whether such time counts as paid time comes down to whether the employee is required to remain on the premises or at an accessible location. Even in the absence of a formal policy, however, employers should make sure that the pay practices for such time do not result in discrimination against either gender in the "hours worked" test, as that would open the door to legal trouble.