This post was written by Megan McDonald, the Office Manager at Connor & Connor PLLC.
Like many small businesses, Connor & Connor PLLC spent the first few years of its existence without Human Resources professionals to oversee the minutiae of managing employees. As we have grown, we’ve learned the importance of implementing and enforcing accurate and fair human resources policies.
The Human Resources 101 series is designed to provide helpful tips and tricks for small businesses and self-managing employers. Today, we will be covering breaks and overtime.
Breaks – Federal Law
Federal law divides breaks into two distinct categories: rest and meal. There is no federal requirement for employers to provide rest breaks for employees. However, rest breaks are common in many industries and are required under state law in certain states.
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945))
Electronic Code of Federal Regulations (https://www.ecfr.gov) Title 29, Subtitle B, Chapter V, Subchapter B, §785.18 Rest.
If, however, an employer does offer short rest periods, such time is generally considered paid time under federal law, and employees should be paid for this time at their standard pay rate.
Similarly, federal law makes no requirement for employers to provide meal breaks for employees. Meal breaks have become the norm across most industries and most employees expect to receive such meal breaks.
(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. (Culkin v. Glenn L. Martin, Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951), aff’d 197 F. 2d 981 (C.A. 8, 1952), cert. denied 344 U.S. 888 (1952); Thompson v. Stock & Sons, Inc., 93 F. Supp. 213 (E.D. Mich 1950), aff’d 194 F. 2d 493 (C.A. 6, 1952); Biggs v. Joshua Hendy Corp., 183 F. 2d 515 (C. A. 9, 1950), 187 F. 2d 447 (C.A. 9, 1951); Walling v. Dunbar Transfer & Storage Co., 3 W.H. Cases 284; 7 Labor Cases para. 61.565 (W.D. Tenn. 1943); Lofton v. Seneca Coal and Coke Co., 2 W.H. Cases 669; 6 Labor Cases para. 61,271 (N.D. Okla. 1942); aff’d 136 F. 2d 359 (C.A. 10, 1943); cert. denied 320 U.S. 772 (1943); Mitchell v. Tampa Cigar Co., 36 Labor Cases para. 65, 198, 14 W.H. Cases 38 (S.D. Fla. 1959); Douglass v. Hurwitz Co., 145 F. Supp. 29, 13 W.H. Cases (E.D. Pa. 1956))
(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.
Electronic Code of Federal Regulations (https://www.ecfr.gov) Title 29, Subtitle B, Chapter V, Subchapter B, §785.19 Meal.
Unlike rest periods, meal periods are typically unpaid and employees are considered “off the clock” during this time. If employees are provided with unpaid, “off the clock” meal periods, it is important to ensure that they are not performing work related tasks or duties during this time.
Breaks – Nevada Law
Unlike federal law, Nevada law has very specific requirements regarding break time for employees. Employers must allow paid breaks (“rest period”) at the rate of ten (10) minutes for every four (4) hours worked. Breaks should be in the middle of each work period, as much as possible. Employees that work less than three and one-half (3 ½) hours in a day need not be provided a break. Additionally, any employee that works for a continuous eight (8) hours must be provided with a meal period, which must be a minimum of 30 uninterrupted minutes. (See NRS 608.019). While not specifically called out in the law, meal periods are generally accepted to be unpaid breaks. Again, it is important to ensure that employees are not performing work functions during break periods. There are certain extenuation circumstances under which the above guidelines may not apply. If you have a unique work environment, please consult NRS 608.019 for more information on the possible exceptions.
Overtime – Federal Law
The Fair Labor Standards Act (“FLSA”) contains the federal law provisions regarding overtime pay. All non-exempt employees are required to be paid overtime pay for all hours worked over and above forty (40) hours in a workweek. The rate of pay for such overtime must not be less than one and one-half (1 ½) times the normal rate of pay for the employee in question. Employers are not required to pay overtime for work on weekends, holidays, or regular days off, unless overtime is incurred on such days. The FLSA does not restrict the maximum number of hours an employee may work, or that an employee may be required to work, as long as the employee is 16 years of age or older.
Proper timekeeping and correct payment of overtime is extremely important. Employees who believe they have been incorrectly paid may file a complaint with the Wage and Hour Division of the Department of Labor. Additionally, they may file suit against the employee, and may request several years of back pay, along with attorney’s fees and costs.
Overtime – Nevada Law
Nevada law regarding overtime is a little bit more complicated. Employees that are paid at a rate less than 1 ½ times the minimum wage are eligible for daily overtime. (NRS 608.018) For those employees, overtime pay (at a rate of 1 ½ times their standard rate) must be paid for working more than eight (8) hours in a workday. Such employees are also entitled to overtime pay for any work time over forty (40) hours in a workweek. There is an exception for employees that work a four day work week with ten hours per workday. However, overtime must still be paid to those employees for any work time over ten hours in a day or forty hours in a week. Employees whose base rate of pay is more than 1 ½ times the minimum wage are only eligible for weekly overtime (more than 40 hours worked in a single work week).
There are certain types of employees that are exempt from the overtime rules listed above.
3. The provisions ……… do not apply to:
(a) Except as otherwise provided in paragraphs (o) and (p), employees who are not covered by the minimum wage provisions of NRS 608.250;
(b) Outside buyers;
(c) Employees in a retail or service business if their regular rate is more than 1 1/2 times the minimum wage, and more than half their compensation for a representative period comes from commissions on goods or services, with the representative period being, to the extent allowed pursuant to federal law, not less than 1 month;
(d) Employees who are employed in bona fide executive, administrative or professional capacities;
(e) Employees covered by collective bargaining agreements which provide otherwise for overtime;
(f) Drivers, drivers’ helpers, loaders and mechanics for motor carriers subject to the Motor Carrier Act of 1935, as amended;
(g) Employees of a railroad;
(h) Employees of a carrier by air;
(i) Drivers or drivers’ helpers making local deliveries and paid on a trip-rate basis or other delivery payment plan;
(j) Drivers of taxicabs or limousines;
(k) Agricultural employees;
(l) Employees of business enterprises having a gross sales volume of less than $250,000 per year;
(m) Any salesperson or mechanic primarily engaged in selling or servicing automobiles, trucks or farm equipment;
(n) A mechanic or worker for any hours to which the provisions of subsection 3 or 4 of NRS 338.020 apply;
(o) A domestic worker who resides in the household where he or she works if the domestic worker and his or her employer agree in writing to exempt the domestic worker from the
requirements of subsections 1 and 2; and
(p) A domestic service employee who resides in the household where he or she works if the domestic service employee and his or her employer agree in writing to exempt the domestic service employee from the requirements of subsections 1 and 2.
See Nevada Revised Statutes §608.018.
The above regulations are the minimum requirements for an employer, however employers are always able to exceed the requirements. For example, some companies choose to offer an increased pay rate for those employees that work on designated holidays. While not required under federal or Nevada law, nothing prohibits an employer from providing these types of added perks. It is ultimately up to management to determine the internal policies and procedures for each company.
If you have any additional questions regarding breaks or overtime, please consult the resources referenced or contact an experienced employment attorney.